ML19325D998
| ML19325D998 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/20/1989 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#489-9348 ALAB-922, OL, NUDOCS 8910310150 | |
| Download: ML19325D998 (169) | |
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UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judges: f-h, , ,
G. Paul Bollwerk, Chairman Alan S. Rosenthal Howard A. Wilber
)
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, )
)
(Seabrook Station, Units 1 and 2) )
)
MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL FOR RECONSIDERATION OF ALAB-922 l'
COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL John Traficonte Assistant Attorney General 8910310100 091020 3 . Chief, Nuclear Safety Unit DR ADOCK 0500 One Ashburton Place Boston, MA '02108 DATED: October 20, 1989
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOli T9 OT. 23 P 3 :59 ATOMIC SAFETY AND LICENSIllG APPEAL BOARD Before Administrative Judges:
G. Paul Bollverk, Chairman Alan S. Rosenthal Howard A. Wilber In the Matter of ) Docket Hos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, )
)
(Seabrook Station, Units 1 and 2) )
)
MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL FOR RECO!4 SIDERATION OF ALAB-922 COMMONWEALTH OF MASSACHUSETTS JAMES M. SHAN! ION ATTOR11EY GENERAL John Traficonte Assistant Attorney General s910310150 091000 . Chief, Nuclear Safety Unit PDR ADOC K One Ashburton Place G OSOOf}f Boston, MA 02108 DATED: October 20, 1989
UNITED STATES OT AMERICA NUCLEAR REGULATORY' COMMISSION I
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ATOMIC SAFETY AND LICENSING APPEAL BOARD Before Administrative Judgest G. Paul Bollwerk, Chairman Alan S. Rosenthal Howard A. Wilber
.. )
In the Matter of ) Docket Nos. 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, )
)
(Seabrook Station, Units 1 and 2) ) October 20, 1989
)
MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL FOR RECONSIDERATION OF ALAB-922 INTRODUCTION The Massachusetts Attorney General (" Mass AG") hereby moves this Board for reconsideration of its determination that the Commission's emergency planning regulations (10 CFR 50.47 and Appendix E) are "second-tier" rather than "first-tier" adequate protection requirements under the Atomic Energy Act, section 182. ALAB-922, slip opinion at 10-19 and note 46. 1/
1/ Although this Board did certify the question of the proper interpretation of the legal standard to be applied to emergency plans prior to initial licensing, it did so after holding that emergency planning is itself an additional " extra-adequate" (ALAB-922 at 16) level of protection. Thus, the Mass AG seeks reconsideration by this Board of an issue that is distinct from the question certified by this Board to the Commission although related to it. This Board did not expressly certify the question whether its holding as to the second-tier status of emergency planning is correct.
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} The basis for this holding was the discovery by this Board 1/that:
(w) hen it initially promulgated section 50.47 in ;
1 1980, as authority for the regulation's creation 1 the commission cited "Sec. 161 b., i., o . . . . {
(42 U.S.C. 2201)." It is hard to imagine a more compelling indication that, contrary to ')
i intervenors' central premise, emergency planning requirements are intended to be second-tier, AEA section 161 safety provisions rather than a first-tier, " adequate-protection" requirements ,
i' (sic) under AEA section 182.
ALAB-922 at 18. Understanding this Board to have interpreted f for the first time the intent of the commission in 1980 based i on the citation of authority that appears at the close of the
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publication of the final rule in the Federal Register, the Mass AG upon receipt of ALAB-922 secured a transcript of the July !
23, 1980 final Commission public meeting at which detailed discussion and a vote took place concerning the language of the emergency planning regulations. This transcript contains ,
information which is of direct, immediate and dramatic ;
importance for the proper disposition of this central issue in the Seabrook proceeding. The transcript completely and
- 2/ No party had ever argued at any time in this proceeding ,
that the citation of authority that appears at the close of the publicction of the final rule on emergency planning (45 Fed.
Reg. 55402, 55413, 3rd col., (August 19, 1980)) aupports the proposition that the Commission intended emergency planning to be "second-tier". Indeed, although the Mass AG in his orief to this Board at 36-39 specifically argued that emergency planning is "first-tier", neither the Staff nor the Applicants argued that it is "second-tier", although both certainly offered their j respective interpretations of the core phrase: " reasonable l assurance that adequate protective measures can and will be taken". l 10 CFR 50. 4 7 (a) (1) . i 1
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I r irrefutably undermines this Board's holding that the commission L
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}, intended to adopt the emergency planning regulations pursuant ;
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[ not to $182 and " adequate protection" but to $161 understood as I an " extra-adequate" level of safety. This Board should, indeed !
must,. reconsider its determination on this pivotal issue.2/ l ARGUMENT l t
I. WRAT THE COMMISSIONERS SAID.
I' A. To the extent administrative or regulatory history is ,
r relevant to the proper interpretation of the legal standard of l
- 50. 4 7 (a) (1) , as this Board found (ALAB-922 at 18), no one j t
portion of that history shocid be selectively chosen for j review.d/ Indeed, when considered as a source of law .
i administrative history, like legislative history, should be j viewed as forming a hierarchy of materials from which one can reconstruct intent and meaning. Traditional principles of I statutory interpretation provide one map of this hierarchy l which, as an '
2/ The Mass AG in what follows does not quote all or even most of the relevant discussion in this transcript. Attached as Exhibit 1 are the first 50 pages of the July 23, 1980 transcript, almost all of which is given over to a discussion of the phrase " reasonable assurance of adequate protective measures". -
1/ As this Board noted in ALAB-900, 2F, NRC 275 at 288 (1988),
such history can provide background information and resolve ambiguities but should not be used to contradict the " plain meaning" of the wording used in a regulation.
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external guide, can be applied to any group of historical )
material's.E/ More compelling, however, is a situation in which the historical materials themselves indicate what material is to be given significance. In this instance, the Commission in 1980, during its final deliberations on the emergency planning rule, discussed at length the pivotal issue
.. of the legal standard to be applied to emergency plans prior to licensing and agrRRd in modify tha }ity phrasa changing the '
i standard from the proposed " appropriate protective measures" to the current " adequate protective measures" in order that the ;
standard be understood as expressly trackina the statutorv standard g1 adecruate orotection under 1122 91 thR h]llA.5 Aware of the significance of this change, the commission expressly incorporated the transcript of the July 23 public meeting into the rulemaking record.2/ ,
e 5/ Egg 2A Sutherland, Statutory contruction, Chapter 48,
" Extrinsic Aids" 5548.01-48.20 (4th ed. 1984). ,
s/ Attached as Exhibit 2 is the actual text of the rule with the results of the Commissions' deliberations handwritten over the typed version that they had been presented with for '
approval. (This handwriting was part of the document received by the Mass AG from the NRC.) As the accompanying memo from the Secretary of the commission indicates, this material was then put in final form and published in the Federal Register on '
August 19, 1980. (Enclosure 3 which recited, inter allA, the fact cf the July 23, 1980 meeting and the determination at that meeting to make the transcript part of the record, was added after the meeting for obvious reasons.) ,
2/ Absent this action, Commission regulations would prohibit citations to this record in any pleading filed to the "
commission and its adjudicatory Boards. 10 CFR 59.103.
obviously, then, the Commission's determination to take this l action is of importance in properly judging the weight to be given to the transcript record, as compared, for example, to the citation of authority that appeared in the Federal Register.
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Indeed, the Chairman stated at 40 F
- I think we all agree that the weight that is in a single word is enormous, clearly . . . . Len, (General Counsel Bickwit) had pointed out that it night be important to have as a record of I decision underlying where we end up the transcript of the meeting.
Let us suppose we choose adequate. I think Joe (commissioner Hendrie) is beginning to be willing almost accept that. I am willing to accept it
,. and I think the other two are willing to accept
! it. If we choose adequate, just embedding that
' word " adequate" isn't going to even begin to n
describe what we meant by it. Whereas, 11 the transcriot 91 thg neetina underlav tha decision thst night be of help to some people who are trying to figure out what do we nean.
(emphasis supplied). In short, the Commission itself noted the need for this transcript in correctly interpreting what they meant and they took necessary express action to permit citation and review of this transcript which would otherwise be precluded by commission regulation.
B. The transcript is clear, direct and unequivocal on several critical points:
- 1. Up until July 23, 1980 drafts and versions of the proposed rule used " appropriate protective measures" A/ as the regulatory standard for judging an emergency plan prior to licensing. This language was expressly rejected unanimously by the Commission on the grounds that it could be interpreted as permitting approval of an emergency plan for a site which L
g/ " Appropriate" was the standard under the pre-1980 Appendix E planning requirements for the LPZ. Egg transcript at 44 (Jangochian noting that " appropriate" is a "significant word";
Kenneke that it is a " code word" and Commissioner Bradford i noting that " adequate" is an " historical code word, too, just
- in a different context.")
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set forth the available protective mensures under the j circumstances of that site (cuch protective measures being therefore " appropriate") even thsugh those peasures would DQt hg sufficient 1v effective ID protectina public health and safety. Transcript at 22 and passlE. Indeed Commissioner Bradford stated at 39: j
.. the word " appropriate" would really be taken as j meaning more or less do the best that you can
.... I do think that the word " adequate" or i
" effective" takes you a level higher than that. !
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- 2. The word " adequate" was agreed to because it repeated l 1
the statutory standard of adequate protection and expressed the j intent of the Commission to establish a " rule of reason" (33) for judging emergency planning that would insure that more than "best efforts" would be required.E/ Transcript at 31, 45.
" Adequate is adequate." Tr. at 33-34. As Commissioner Gilinsky stated it: l You want to be sure, reasonably sure that on the l basis of this plan action will be taken that will !
keep people from getting irradiated to any ,
substantial degree. j l
Tr. at 44.
- 3. The Commission (and the Staff participants) clearly L agreed that " protective measures" meant evacuation and sheltering. In fact, a staff representative proposed the following:
l So one other thing you might do is simply put a
! parenthetical after the word " measures" that says
" including sheltering and evacuation" which is at least the minimum choice that they need.
2/ As Commissioner Bradford stated: "The phrase becomes adequate protective instead of adequate protection, but I think that is close enough" Tr. at 32.
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Tr. at 42. Moreover, the Commission understood that by l
, requiring a range of protective measures as part of the 5 objective requirements for an adequate plan they were ensuring l i
to some extent that the protective measures available at a site ,
would provide reasonable assurance of adequate protection.1E/ Tr. at 35, 36, 38.
. . II. WHAT THE COMMISSIONERS DID.
As Exhibit 2 indicates, the commissioners not only made ,
statements about their intent with regard to the phrase
" adequate protective measures", they took specific action modifying the language of the proposed final rule and inserting -
the word " adequate" wherever "approprinte" had appeared.
Indeed, no clearer evidence of intent could exist then Exhibit 2 which makes completely untenable any interpretation of the regulatory history that construes emergency planning as an t
" extra-adequate" level of protection. The Commissioners ,
believed and stated their belief that the phrase " appropriate protective measures" could be interpreted as a "best-efforts in ,
light of the circumstances" standard. The commission then ,
expressly rejected this language and intent.11/
III THE CITATION TO 6161b., i. AND o.
As noted, the relative weight to be assigned to a citation ,
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12/ A staff representative stated: "if one would say that the .
typical conditions are such that you can expect people to be unable to reach shelter because of probable weather conditions then I think he (Commissioner Bradford) definitely has a strong point." Tr. at 28-29. Bradford had articulated at 26 the difference between " appropriate" and " effective".
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) of authority as compared to these other materials is slight.
Moreover', for the following reasons, the citation to $161 b., l
- 1. and o. of Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201) at i i 45 Fed. Reg. 55413 is of Dg sianificanEA At All in the proper ;
! interpretaticn the legal standard set forth in 50.47(a)(1) .12/ !
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A. As Exhibit 0 establishes, the citation to $161 was '
,, part of the draft final rule put before the commissioners on !
July 23, 1980. (Exhibit 2 at 57 of Enclosure"B"). That draft l fina3 rule (which is obviously Enclosure "B" without the 1
> editorial marks and does not include Enclosures 1, 2 and 3) ;
I 11/ An important distinction exista between stating one's l meaning and intent in the use of a word and replacing that word ;
with another. Thus, had the Commissioners expressed similar i views but not changed the choice of words in the regulation, i their discursively stated " intent" would be less directive and ,
controlling because of their continued intent to use the word
" appropriate". The deletion of " appropriate" at the final j meeting and vote on the rule mandates a rejection of any :
interpretation of the regulations that transforms that l l regulation into the one rejected by the Commission. Ih2 i reculation bag A clain meanina, 12/ The Mass AG notes but does not develop the argument at ,
length here that the Commission could not have intended in 1980 t a distinction between first-tier ($182) and second-tier ($161) safety regulation which the NRC articulated for the first time in its Brief filed with the D.C. Circuit in 1987 in support of the backfit rule. UCs v. NRC, 824 F.2d 108 (D.C. Cir. 1987)
(That brief is attached hereto as Exhibit 3). The analysis presented here assumes that such a distinction could have been ,
l intended by the citation to 5161 even if the Commission had not formally or publicly articulated such a distinction. As discussed, citation to $161 (and only to $161) was characteristic of regulatory rulemakings which the Commission expressly described to the D.C. Circuit as adequate-protection first-tier safety rulemakings.
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I made no reference 1AI to the NRC Authorization Act (Pub. L.
No. 96-2'95) no doubt because that Act was passed in June, 1980 l and Enclosure B was being drafted in the same time period. At j the outset of the public session on July 23, 1980, the chairman noted the Congressional action and requested a briefing from General Counsel. Tr. 3-4. After discussion of the
.- Congressional intent regarding utility plans (Tr. 4-11, and Enclosure 1) the focus shifted to the standard to be applied to >
these plans, understood as interim compensatory actions pursuant to 50.47(c). (Tr. 11-12). Commissionor Bradford 12/ ALAB-922 also makes no reference to the Authorization Act which, as the Mass AG has argued, (Mass AG Brief at 36n.26),
mandated that the NRC adopt planning standards for emergency plans that meet the "public endangerment" standard set forth in the AEA. When Congress passed the Act, NRC law was clear that
" adequate protection", " undue risk", and "public endangerment" were all a single standard. Maine Yankee Atomic Power Co.,
ALAB-161, 6 AEC 1003, 1009 (1973). In fact, these standards hula continued is km all first-tier, even after the " minimize l danger" standard became second-tier. The NRC expressly i reaffirmed this long-standing interpretation in the very Brief in which it defined $161 as second-tier. Egg Exhibit 3 at 25 ;
n.10. Thus, to the extent the citation to 5161 is interpreted as expression of Commission intent to adopt a second-tier
- regulation, the Commission would be ignoring the express will of Congress in the Authorization Act. Not only did the l
- Commission state in 1980 in Enclosure 3 (as developed in more detail in the text above) that the emergency planning rules as adopted were consistent with that Act, but in 1987 when the Commission modified the emergency planning rules with regard to i utility plans it expressly and repeatedly cited the 1980 l
Authorization Act as critical to a proper understanding of the Since this Board's interpretation would result in 1980 rule.
i the Commission's 1980 rulemaking not being in accordance with l Congressional intent, when the Commission contemporaneous 1y l
stated that its action was consistent with Congressional action, it is disfavored by traditional canons of interpretation. particularly is this true when, as explained above, the citation to $161 pre-dated the Commission's discussion of the Authorization Act. After that discussion the Commission expressly referenced the Act in a portion of the text of the Statement of Considerations added later. To this i
extent, the citation cited by this Board is n.othing more than a vestigial artifact of the draft final rule left uncorrected when the rule was forwarded to the Federal Register.
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4 statedt I would prefer to say alternative equally effective compensatory action instead of simply alternative compensatory I actionsI When asked whether this language tracked the Congressional intent in the Authorization Act as to utility plans, General Counsel stated that it did. As Enclosure 3 ;
E (Exhibit 2) indicates, after the July 23 session the Commission r
.- added the reference to the Authorization Act and stated thatt [
The General Counsel advised the commission that the NRC final rules were consistent with that Act. ;
Thus, although the Commission did not add the Act to the citation set forth at the end of the final rule, the Act did not appear at that point merely because of the timing of the l Act and the original draft final rule. The Commission amended 1
the draft, added " adequate", was told by General Counsel that its final rule was consistant with the Act and then added an express reference to the Act in the text of its Statement of Considerations. Far from establishing an intent to limit the authority for its action to 5161, this history indicates an j express intent to insure that the consistency between the Act and the rulemaking would be understood.1AI
, 13/ The reference to the Act postdates the earlier citation to
? 5161 in the draft. In addition, changes were made in the draft I that were noted as consistant with the Congressional intent in the Act and then the Commission expressly stated that it l
considered the final rule and the Act consistent. Obviously, the earlier citation to 5161 supported a different rule drafted prior to or without full consideration of Congressional action. It goes without saying, that the express references in the transcript to the adequate protection standard are much l more significant indications by the commission of its understanding of its authority for the rule and (as a function of that authority) its intent. Since the " adequate protection" standard of 5182 and the "public endangerment" standard which was mandated by Congress in the Authorization Act are identical, there is no tension between these two different and '
substantial indicia of Commission intent.
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B. In any event, the commission is not necessarily creating ~a second-tiar safety regulation when it citee $161 and not $182 in a safety-based rulemaking. An obvious example is the fire-protection rule arising out of the Browns Ferry fire.
10 CFR 50.48. In its Brief to the D.C. Circuit describing the two-tiered safety backfit scheme, the Commission distinguished
.. backfits necessary to ensure adequate protection (in which no costs may be considered) and backfits that are second-tier (and therefore weighed against benefits). Exhibit 3 at 7-8, n.4.
As an example of an adequate protection backfit, the Commission cited the fire protection requirements of Appendix R. Id. Yet, in the citation of authority in support of this re.gulation set forth at 45 Fed. Reg. 76602, 76616 (November 19, 1980), 5161b and 42 USC 5341 are the only statutory sources cited.
Therefore, citation to $161b alone in August 1980 as in November 1980 does not indicate any Commission intent regarding second-tier safety regulations.
Indeed, comparison of the citation of authority that appears in support of the fire protection rule at 45 Fed. Reg.
at 76616 (November 19, 1980) with the citation on which this Board relies for its holding that the Commission intended emergency planning to be second-tier (45 Fed. Reg. at 35U.3, f
(August 19, 1980)) reveals that both cites are very similar, t
l with the authority for emergency planning including $161 1. and I
- o. as well as b. Far from indicating an intent regarding the l hierarchy of Commission safety regulations, these citations l
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had a nuch more mundane although not uninportant purpose. They
! were int' ended to identify $650.47 and 50.48 as regulations issued under 5161b, i or o to which the criminal sanctions set forth in 42 USC 52273, therefore, would apply.
, CONCLUSION For all the reasons set forth above, this Board should i
. . allow the Mass AG's motion for reconsideration, reverse its determination that emergency planning is a second-tier safety
. regulation and revise to the extent it deems necessary the question it has certified to the commission regarding the admissibility of the Mass AG's Sholly/Deyea testimony.
q Rospectfully submitted, JAMES M. S!!ANNON ATTORNEY GENERAL BY:
yhnTratidente' C lef, Nuclear Safety Unit ssistant Attorney General one Ashburton Place Boston, MA 02108-1698 l (617) 727-2200 DATED: October 20, 1989 i
Seygneme we y '
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AGENCY N0LDING THE PEETING: Nuclear hegulatory Com\ssie2 l
' I TIME AND DATE: Week of July 21 (Revised) l PLACE: Comissioners' Conference Roos,1717 H St. , N.W. , Washington, D.C.
STATUS: Open/ Closed (Changes) ;
MATTERS 70 St CON 510ERED: ;
Monday, July 11 i
9:30 a.m. BudgetPresentations(Approx 3 hrs)(CLOSED-EXEMPTION 9)
- Inspection & Enforcement ,
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2:00 p.m. Budget Presentations (Approx 3 hrs) (CLO' SED EXEMPTION 9) '
- Nuclear Regulatory Research ,
Tuesday, July 22 P
/ '
1:00 p.m. BriefingbyExecutiveBranc.honExportMattar(Approx 1hr) it,L.,0 SED-EXEMPTION 1) .
- 2:0$p'.m. BudgetPresentations(Approx 3 hrs)(CLOSEDEXEMPTION9) r
- Nuclear Reactor Regulation Wednesday, July 23 ,
9:00 a.m. Budget Presen ations (Approx 3 hrs) (CL0stD EXEMPTION 9) ;
- Standards Development / Nuclear Material 5afety & :
D Safeguards Discussion of Management Organization & Internal 1:00 p.m. 1.
Personnel Matters (Approx 1 1/2 hrs) (CLOSEb tX 2 4'6) ,
- 2. Discussion and Vote on Final Rulemakini) en Emergency Preparedness (Approx 2 hrs) (PUBLIC MEL:TINQ)
(RESCHEDULED FROM 7/17) ,
Thursday. July 24 ;
9:30 a.m. Budget Presentations (Approx 3 hrs) (CLOSED-EXEMPTION 9) '
Administration /ED0 Offices .
l 2:00 p.m. 1. Budget Presentations (Approx 3 hrs) (CLOSED lXI:MPTION 9)
- Continuation of ED0 offices /Comission X"1ces
- 2. Affirmation Session (Approx 10 min.)(PUBLIC PEETING)
- a. Pet. for Reconsideration Denial of Intervenor Funding (TENT)
- b. Order in Psychological Stress at TMI (TENT)
- 3. TimeReservedforDisc.4VoteonAffirmationItems(ifrequired).
l (Aoprox15 min)(PUBLICMEETING) 1 l
Friday. July 25 2:00 p.m. 1. Budget Presentatiorst (CLOSED EX 91
' - Conrnission offic'es (cont'd 1" requited)
- 2. Discussion of Indian Point - Approx 2 hrs) (PUBLIC MEETING) .
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..,- DISCLAINER 1%1s is as usefficial transcript of a meeting of the United States Nuclear Rayulatory Commission kald en Juiv 2.1. 'ese ,
is the Ceanission a offices at 1717 I Street, N. 'W. , Was dattes,
. D. C. The meeting was open to public attendance and observaties. (
. This transcript has not been reviewed, corrected, er editad, and j
,, it any contain inaccuracies. .
The transcript is 1standed solely for general inf,ormational purposes. As provided by 10 CFR 9.103, it is not part of the !
formal or informal record of decisies of the matters discussed. t l
Expressions of opinien ta this transertyt da not necessarily i reflect final determinations or beliefs. We pleading er other {
papar may be filed utti the Commission ta any proceeding as the ,
result of or addressed to any statanant er argument contained .;
hereia, axcept as the Connaissica any authorise.
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2 CHAIPrAs.ANEARuts The subject ofthemeetingthis!
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\ 3 afternoon is to address further the energency planning 4 rule. Let se try to at least give a brief svar.ary of some i i
5 background. I as sure there are other itens.
h 4
In December of '78 the Consission was briefed on a j 7 joint NRC/EP Task Force report. We agreed to issue that for . ;
8 cessent and it was sent out in December of 1978. It was !
! issued for public consents. Chriously in .Tarch of '79 ve !
l 10 had the Three Milo Island accident.
i 11 In June of '79 the Cossission eet to discuss [
, 12 energency planning. Amongst other itecs, we address the Gno 13 report on areas around nuclear facilities should be better ,
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14 prepared for radiological e'nergencies. In June of '79 at .
15 t h a t meeting requested establishing a task force on 16 emergency planning and we also directed preparation cf a !
i 17 notice of our intent to hold a rule-making en emercency l i 18 planning.
t 19 In June of '79 ve got a briefing on the ; regress '
20 of the task force. In July of '79 ve sent out an advanced 21 notice of propcsed rule-making. 'l'he staff analysis of those !
22 consents have been published as a dU!E3 dccusent. In 23 September of '79 ve got a briefing en the report of the tash
- s. 24 force on emergency planning. In November a.".d December of .
25 '79 ve hold at least four asetings to,discusset th4 detft '
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1 esorgency' planning rule. In December of '79 ve pub 11 sheet o . .
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^
$s i 2 the-proposed amendments fng upcrading the energency planning 1
- a 3 regulations, the draf t rule. l 4
In January of '80 there were regional workshops '
5 helt .n four. sites in the country to describe and discuss 6 the draf t rule. In June of '80, sarly in June this year, 7 the staff submitted their. draft final rule, and that then j
~8 received modifications and chEnges.- In the middle of June i:
9 we were briefed by the staff on the draf t final rule. At
+
10 the end of June' we held a seeting to hear presentations from li panels representing a broad spectrum of organizations and 12 individuals concerned a:d interested in the rule. In the i 13 beginning of July. We were briefed on the staff response to 14 the panel presentations.
15 Now we. have in f ront of us ~ then a rule that n r. s i
1 16 received a large a.sount of Co: mission attention.
It has L
17 been through the advance notice, public cc:.r.en t, draf t rule
~
18 and public consent.
What I would today is to at f.e t s t try 19 to see wh ethe r we ca n ' t work through a nu2ber cf the lastest 20 comments that have been received by staff and by the 21 Commissioners on the rule.
22 Prior to do that we have had one ot'.e: major, !
23 think, piece of advice on the rule, and that is th.-
Congressional Authorization Committees nave acted :n the
?
25 conf erence and have put some innguace inte leciciation. The l
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA Avt. S.W.. WASHINCToN. o C. 20014 17618 au.me 3: . - - - . - . - - - ------- - _ _ _ _ ,
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general counsel hts been discussing that issue vath some of 2 the Congressional staff and perhaps it would he appropriate, 4 3 Len, for you to describe that.
4 BR. BICKWITs Thank you, .9r. Chairman.
5 I. guess it was approximately two weeks ago I had
. . s some telephone calls from the Senate Nuclear Regulation L
7 Subconsittee staff from Paul' Leventhal and Keith Glazer "
8 expressing concern that the proposed final rule as they read 8 it conceivably was not consistent with Congressional-intent 10 as it regarded the licensing of new plants. It did not make 11 that representation with respect to the provisions in the D.
proposed final rule rela ted to existing plan ts.
l 13 I
' CHAIRMAN AHEAPNE: Ihis rulw'was the draft th t t 14 had been presented by the staf' f in June? '
15-ER. SICXVITs 1
That is richt.
16 CHAIB3AN AHEAENIs These are members of what 17 cohe it tee st a f f ?
i8 i 3R. BICXWIT This is the Nuclear Regulation 19 Subconsittee staff of the. Senate side. Their majer concern 20 was that it had been their understanding ---
21 CHAIE!AN AMIARNEa One other question. Ec the 22 represent the 'sadority or the minority?
23 2R. BICXWIT They purported to represent eniy the 24 majorit7 in this discussion, althou7h they suspected thtt 1
25 the ain rity staff vocif. sabrecibe to so=e of the thince
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2 Thdir ' concern was that under the rule as draf ted i 3 it vaa not clear to them.that the Consission contemplated !
q 4
_ that in the absence of a plan, of a state or local plan
,.1 8 which f ully complied with the ree:uirement.s of t.he rule that i 6
the Commission intended.to look at the utility's plan to see 7 whether that plan could compensate for the deficiencies of 8 the state and local plans.
9 They said it was a central feature of the 10 agreement reached in conference that that would to the case.
11 1 CHAIRMAN AHEARNE4 Their concere. was that our rule 1 1
12 was too harsh? * '
13 I ER. BTCKWIT4 That is true.
l t
14 CHAIPMAN AHEARNE -Their interpretstion of the 15 Congressienal action was tha t a more flexible rule vas 16 intended by the Congress?
17 P. .R . 3 CKW:T That is correct. I told t ?. e .3 , 4: : * '
18 have told the Comrissien, that the way our office h.tc rasd 19 the legislation that th e legisla tion provides ter T.inim us '
20 requirements for a rule and therefore the Coesitzien ir free 21 from a legal standpoint to be as stringent a s it chooses to 22 be under the law. They disagreed with that a: sorts +nt. i 23 Cthers I have spoken to on tne Hill have exprarsH 24 agreement with that.
25 C3X3IS5!3NER 2RA TORCS With which side?
l l
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, 53. BICK5ITa Agreement with th,e interptetation' I' 2.have given to the consission.
3 CRAIBR AN AHEARNE: '4hich Side of that 4 interpretation? You indi:stad your view and then the
.8 Congressionti staff's view.
8 HR. BICXWITa The view that I have given to the :
s 7 Consission as opposed to the Congressional staf f 's view.
l 8 What we have termed the Congressional staff's viev may not l 9 be in fact the Congressional staff's view. It may be the l 10 view of only scas among Congressional staff. l 11 It was because it was unclear exactly what the '
,i 1
12 staff as a group up on the Hill were saying that i thought l
13 it would be app opriate to see if the Me=bers of the 14 conference vanted to express themselves by letter on this l 15 pa rticula r subject.
16 In suggesting that to the Fendte Nuclesc 17 B'gulation e Subcommittee staff they succested that an L
11B alternative arrangement alpht he possible. *his followed 19 from my pointing out to them that there was a ;hrase in the 20 Commission's rule which I felt would make tha t rule 21 consistent with the Congressional intent as they undeerteed j 22 it. That phrase states that the state and local plan nsed p
.. U not comply with the requirer.ents in the rule if alternative 24 compensatory actions are taken with respect to the 25 deficiencies.
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I told thes that I believed it was the kCommis:sion's view that one of the alternative cospensatory 3 actions that- eight be looked at would be the actions taken 4 by a utility'in any kind of utility plan that sight 5 compensate for the deficiencies. I asked thos if the 8 Cossission were to include language that specifically stated-7 that intent it would aske the rule consistent in their view 8 with the intent of the Congress as they saw it, and they 9 said yes.
10 Again, they did not purport to be speaking for all 11 Congressional staf f, but they believed that would make 12 things consistent. '
13 '
Now, I want to reiterate my view that whether or 14 not the Consission chcoses to do that is not a legs 1 15 satter. Ar I read the legislation and the supporting 16 legislative history, the Ccamission is free to go teyond the
~
17 sinlaun requirements se t by the Con;ress. ! talleve this to 18 be true despite the f act that Congressional staff 18 representations are to the contrary. I believe 20 Congressional staff representations at this point, or *ven 21 representations by the Members of the Congress the selves, 22 would not have legal weight. So I think that the 23 Coanission's options are not limited by these expressiens of 24 opinion.
25 Howwver, if it is the Cosaission 's view that
. ALD8ASON REPORTING COMPANY. INC.
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" . (' ' c 1 alternative compensatory actions would include a .look at the
- r 2 n'tility's plan to see whether. that plan was in f act b
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'c then I would suggest. stating that in the
! 4 supplementary information associated with the cule. I have h4 ,
5 proposed some language which you have before you as
,6' Enclosure 1 <
.. 7 CHAIRMAN AHEARNEs len, when you say that you ,
8 dis =ussed with other people on the Hill and they su; ported 9 your other position, were these people involved in the 10 conf erence?
i' l 11 3R. BICKWITs Tes. I as talking about people on j 12 the House side. So that it was a somewhat confused -
13 communica tion that : vas getting from the Hill. As a result 14 I felt if the Congress were to express themselves en this-15 particular issue it would be best that it be done by 16 le tter. At this point I see no need for such a letter. !
17 would see no need f or it from a legal standpoint in a n's 18 aven t .
19 CHAIRdAN AHEARNEs I as not confuse.d by whst you i 20 are saying. Are you saying that you talked to sta!! me.tbers :
21 who participated in the conference and some had one -
g 22 interpretation and some had another?
l 23 XR. BICXWITa That is right. Tha t is what ; e.
24 saying. I as saying that the only members of the 25 Congressional staff s which have clearly ex;ressed thewolves i
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L 9 j L (7 1 as saying that our proposed final rule was inconsistent with l l
L 2 Congressional intent have now-agreed that this particular h(.
- 3 language would aske it consistent with that intent. As I I 4 !
finished that sentence I think I have to retract it to some j
[ 5 degree ---
6 (Laughter.)
7 3R. BICKWIT - --- because at this point I do not 8 know exactly where the.ainority staff of the subcosaittee 9 stands un this question. I i
10 CHAIRMAN AHEABNE4 So what you are saying is that ;
11 you are confident that the majority staff of the Senate !
1 12 subcosaittee would agree tha t the language that you have is 13 consistent' with the intent. of the Congress?
14 ER. BICKVITs That is right. I have ade an 15 inquiry of the minority staff and I have not had an answer.
16 CHAIRMAN AHIARNEa You are not sure also wha t the 17 opinion would be of either the majority or 91nority staff on 18 th, House sido? )
l 19 ER. BICKWIT I am act.
20 I COM3?SSIONER CILINSKYa You are now referrinc to ,
21 Enclosure 17 i
22 ER. BICKWITa I 2: referring to in clos ura 1.
. 23 C33MISSIONER HIND? iia Enclosure 1, when you say 24 at the end of the first paragraph on page 5, there are 25 several versions ---
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'{' 1 CHAIR 3AN AHEARdE6 I would soggest you work on the 2 last docu. ,at, the one that SECI distributed.
3
. COI3ISSIONER HENDRIEs 7/15/80.
4-CHAIRMAN AHEARNEs Iha t at least had all of the 5 pesvious changes.
8 CDREISSIONER HENDRIE: Oh, I see where it goes.
7 Okay. .
, 8 CHAIB5AN AHEABNE 6 !ow, does everybody have that 9 version.
10 3R. BICKWITs About six lines devn.
11 COMBIESIONER HENDRIE4 Would any.part of Encicsure 12 1 language then also occur over at the top of page 397 f 13 HR. BICKWIT4 I don't think that is necernary.
14 '
COMMISSIONER HENDRIE: Having explained it up in !
15 the front end, why there is no need te put the explanation 16 in the actual rule.
17 BR. BICKWIT: That is right. You are explaining 18 wha t that language means as it is used in the rule. '
!' 19 COBRISSIONES HENDRII: Okay, goed.
2D 2R. BICKWITs Again, if tha t is not what you 21 seant, I see no legal reason for the Commission to sdept l 22 that language AJ a result of these consonications. If it ir
.- 23 what you meant, I think it wculd to appropriate to incicde 24 that language on page 5.
25 COMMISSIONER HENDRIEs Let's see, the lan;uare is t
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1 drawn right ont of the Authorisation Act, right, section 109?;' 2 Rt. BICEWITs No, it is not. I 3 CHAIRNAN ANEARNE: It is not in the Authoritation 4 Act. It is drawn out of the conversations Len has had with ; l* 5 the Majority'Hombers of the Senate subcommittee. . 4 BR. BICKVIT4 That is right. 7 CORMISSIONER HENDRII: Well, thers is a certain 8 parallel. Section 109(2) of Public Law 96-295 says "In the , 9 absence of a plan which satisfies the requirements of
'l 10 paragraph 1", i.e. , everybody has checked off on it "there 11 exists a state, local or utility plan which provides )
l 12 reasonable assurance that public health and safety is not j l 13 enda ngered by operations of the facility itself." l l 14 This says "In determining the sufficiency the 15 Commission will extr.ine state plans, local plans or licensee , 16 plans to deter ine whether f eatures compensate" et cetera, t 17 e t cetera. It is not id e n ti cal . ' 18 CHAIRMAN AHEARNE: Will ycu comment on the two
- l. 19 poin ts raised ?
20 C0!!!SSIONER HENDRIIs *de ll , vould be inclined 21 to put in Enclesure 1 as he has succested. 22 Now, what is the other point?
. 23 3R. WICKWITs Enclosure is an entirely separate 24 matt er .
- 25 CO3MSSIC S ER HEN O.~.!!s We ought te cattid AL.DERSON REPCATING COMPANY, INC.
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2 CHAIRMAN AMEARWEs Vic or Petert 3 C035ISSIONER BRADFORD: {,* I have no probles with ; 4 Enclosure 1, but I would prefer to say alternative equally 5 effective cospensatory action instead of sis ply alternative i 4 compensatory actions. I would still have no problem with j 7 using Enclosure 1. I l 4 CHAIRMAN AHEARNE: Len ? - 9 MR. BICKVIT That is a policy question. to CHAIR 3AW AHEARNE: You are the one who has held + 11 these discussions. 12 ER. BICK'dIT: I as not sure what your question is. ! 13 CHAIRf%N AHEARNE4 My question is, yeur 14 presentation of this paragraph was this is a paracraph which ; 1G I gatter F.r. Leventhal and Mr. Clazer would agree tracks 16 with the conference's intent. 17 PR. BICXVIT4 They would agree tha t Peter's ;
- 18. language tracks with the conference 's inten t , if thst is 19 your question. +
20 CHAIR 5AN AHEARNE: Yes, that was my question, 21 Peter, where would you stick these two in? g , l 22 COEEISSIONER BRADTORDs I would just put the werde
- 23 equs11y eff ective in between alternative and cor.pensatery in 24 our rule. So it is not really an insert to Encloture 1.
25 C::?.Y.!!SION ER HENDF.IIs You preposed that, kind cf ALDmeoM ASPoRTD80 COMPANY. INC.
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'1 languese la a number of places in the statement of 2 censiderations and the rule language itself and I would like
, (e 3 to held and debate that point later on because I have some i 4 problems with that tersinology.
5' CHAIRRAN AHEARNEs' Yictor? 8 C055I55IONER GIITNSKYa Yes, that is fine. 7 CHAIRMAN AHEARNE: Who is keeping track? Mike, 8 you are keeping track. I think ve.all then agree with the 9 inclusion of that paragraph. There.is'a hold question on 10 Peter's alternative " equally eff ective" beca use that, as 11 Peter points out, that is really a phrase that is throughout , 12 the rule. 13 len, why don't you addre.ss your secend enclosure l 14 and then ,ve are going to' have to go thecugh a whole set of
- i 15 things Peter has proposed.
16 ! ER. BICKh*ITa The second enclosure is simply l l 17 designed to confors the supplementary infor:stion of the j 18 rule with the text of the rule as it is proposed to he 19 a dopted . 20 The proposed language in the rule as you now have 21 it before you is not alternative "A" as that alte rna tive 22 existed in the original proposed rule. It is a more 23 flexible version of alternative "A". This simply states 24 that clear 17 ' 25 Our feel was that without a statereent cf this kind L Atosmsow napoRTWo COMPANY, INC. gg g pggdheg60 3 44fp @ 46. egeg PeteteWet 4 # emees samee see u ee
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, a 2 had adopted alternative "A" as its choice for language, and- ,,
3 the Consission has not done that.
- i. 4 Consistent with that change we would also propose :
5 that the last sentence on page 3 carrying over to page # 4 would be-deleted. ! I 7 CHAIRE AN AREARNE: Why? 8 COREISSIONER HENDRIEs- Well, wait a sinute. Let's i, L 9 start on page 22. - ! 10
, C033fSSIc3ER BR ADFORDs I ought to just note that i 11 I had also revised that same paragraph for some of the same r
,12 reasons, but since some of my changes vent in another '
i ! 13 direction, why ny phrasing was slightly dif f erent. t 4 14 i CHAIRMAN ANIARNE: Perhaps we ought to wait then i
- 15 until we get to page 22.
1
'16 COB!!SSIGHER BRADFORD ~
I agree with Len's point.
' ^
17 If in f act the rule stays the var it is then I would vete 5 .
, 18 for Enclosure 2 beca use it is not a straight alternative "A".
1 19 CHAISMAN AHEARNEs Yes. L I think then e ought to l 20 hold that one in abeyance. l L 21 t CDERISSION:k BRADFORDs Fine. 22 CO3MISSIONER HENDiIIs Well, I doubt tr. ore is ruch
- s 23 dispute. What we could do is sort of tentatively agree to if 24 take Len 's recensendation and then when we set to t. hat point l 25 ve could see what changes ha might want'to work upon th.* I i ,
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p.s. . Q .u , 1 Enclosure 2 language. . . .. . v ,
, 2 Len, you don't mean the first two sentences, do ,
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.g , ?' 4 Mt. BICKWIT On page 227 ij 5 r COREISSIONER HEADRIts Yes. You mean the first I' 9 sentence, don't you? !n # 7
- 35. BICKWITs I think I did mean the first i two. 1 8
CORRISSIONER BRADFORDs You just dropped the ( n , 9 discussion of alternative "B" altogether? . 10 {. MR. 8!CtWIT: No. I think what you are referring 1 [ 11 L L to is the Commission's choice is consistent with seat of tne l 12 consents re:eived fece state and local governments. ' I L 13 CHAIRF.AN AHEARNEs I And consistent with the l 14 p r'o visio n . ' 15 3R. BICXWITs Yes. 16 COMMISSIONER HENDRIEs That continues to to the 17 f ac t so far as I know. 18 ER. BICX2ITs I as not sure the first part of that 19 sentence is right. I dcn't know whether most of the 1 20 cosaents referenced this particular chacce in alte:nstiv+ 21 "Aa. 22 CHAIERAW AHEARNE: Let as ask. Mike. 23 ER. JAECCCEIAN: I as sorry, I as writin7. Whst 24 was the question? 25 CHAIRf AN AHEARNEs This is on pave I2. This is am o . c. a . c. l
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age 22.'Cll:,7 8 $ .' *1 f." Q'\, p It says' "Af ter da'ref 9 1'.. . 'gj 2 ceasideratise," that paragraph. I' ' 3 (*. ' ER. JA500CHIANs _Yes. 4-CH AIRIAR AREARNEs The second sen tence, "This 5 Consission choice is consistent with most of the conse 6 received _ fras state and local governments." Ceneral cosases 7 is asking is that accurate. 8 NR. JANG0CNIANs Ios, sir. 9 COBRISSICIER'HENDRIEs Enclosure 2 replaces.the 10 first sentence. i .
'11 II. RICEVITs The first sentence, right. 1' 12 ,
COMEISSIONER BRADFORD ' No, be'cause that is the i 13 third sentence that you are talking about now. The'second 14 sentence is the one that begins " Alternative f." ! ;[ 16 CHAIRMAN AHEARNEs No. l s' ua 16 1. CONNISSIONER BRADFORD: No? ! 17 CONE'ISSIO3ER NENDRIE: You have got the wronc ! 18 d r a f t . 19 CONEISSIONER BRADFORD: Have I got the wrong i 20 draf t? I as working froa my draft. L 21 CHAIRMAN AREARNE: July 15th. 22 C0ERISSIONER BRADFORDs The. alternative "3" 23 discussion is gone anyway. I have that also. ! '(' 24 (Laughter.) L
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25 CORRISSIONER BRADFORDs I can only work from three l (. l
.l ALOWe01s ,npoemme consPAsty, sec. ,
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[.( , 1 draf ts at E time. l m 2 (Laughter.)
- 3
- CORaISSIDEER BRA'DFORDs The sentence I would like. I 4 to get rid of is the one '---
5 CH AIRMAI AHEARIE: I think we really have to work f,e 6 through page by page and then we vill get to yours. 1 7 C3MNI55IONER BRADFCBDs Chay. ! 8
- 53. BICKWITs one other thing. In light of my t '
9 statement we are allf right on leaving that sentence on page 10 3 going over to page' 4. 11 BR. JAEGCCHIANs Actually it should say 'sisilar 12 to . alternative "A" if you are going by your Enclosure 2. It 13 would be sore accurate. i 15 BR. BICKWITs Has adepted a version siallar to --- 15 l ES. JOHNSON: Similar to alte: native "A". 16 MR. RICKWII: Slailar to alternative "A". I would ! i 17 pref er . that. 18 CHAIRNAN AHEARNE: Well, let's ctart back at the 19 beginning if we can because we have got enough changes on i 1 20 various pages. So let me start with page 1. 21 C0!EI55IONER BRADFORD: Let me ask a question i 22 about the history of this doccaent. It this the same as 275 23 as modified by 275-A and E? 24 ER. CPILKs And the cessents that were cada. 25 C035ISSIONEE BRADFORD4 Cossission office l j
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f 1 cosseats, okay. ' ' 2 CHAIRMAN AREARNE: But ' pat into a clean version. p., 'S COMBISSIONER BRADFORDs,. Right. 4 CRAIRMAN AHEARNEs As a result a number of the 5 pages.now are different. S COREISSIDEER'BRADFORD: Yes. The page number 7 doesn't trouble me, but.it would not be safe even to b'e ' S using 275-8 as identical to what SECY circulated. 1 9
.CHAIREAN AHEARNEs Right.
10 NB. CHILKs Almost everything that you have can be ' D
- 11. tracked. . !
12 CHAIRZAN ARIARNE: Hopefully everything can be i l 13 tracked . ' 14 (Laught9r.) ! 15 COE!ISSIONER BR ADFCRD: he one say have to have - 16 some things that we don't have to track it. 17
- COMEISSIONER AREARNT
- Let se start on page 1.
18 Carl. ' 19 ER. GOLLER: i It would be useful to sursarize what-20 tha t particular copy does include or does not include. The 21 version that was submitted by the staff on the 15th includes 21 all of the changes of the staff recommended to the 23 Commission in SECY 60-275-A and all the changes in 275-?. l 24 In some cases one superseded the other. It includes all l -.
. . 25 changes that were suggested in the meno by 3r. Sauter of l'
{ ALDettom apoeTWO C0edPANY. ,pec. 400 vinomia AVE s.w.. WASNwofoss o c.1ebh 2028 844 2344
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1s (L) 19 L 1 July 11, 1980, to all of the'Consissioners. It includes ^ 2' changes that were indicated to.the Consission in a note to
- e. 3 the SECT relative to changes that. vere necessary to confora d
4 the: rule to the latest FINA rulemaking. This was' noted in i L 5 detall'. S' CHAIRMAN AHEAENE: That was a note from yc,u. ! [ 7 NR. COLLER: Yes, sir. It also includes a 8 considerable number of editorial changes that were receive 4 9 f rom a va riety .of sources, some from the staff, some fros - 10 Nr. Sauter and sose from other .consission of fices, none of F 1 11. which, in our opinion', change the intent or the substance of., 12 t h's rule, but 1* all of which are improvements .ind are truly 13 editorial changes. 14 This version does not include one correction which 15 should have been included in the chancoc I Just indicated,- ! 16 which was a deletion of a phrase on page u9 in item two 17 rela ting to the provisions that would be made for tranrients t 18 which was identified in 275-A. This ves an overst -h t . 19 CHAIRMAN AHEARNE: It was the deletion of a phrase l-20 and the addition of another sentence. 21 MR. COLLER4 The addition of another sentenen 22 which went further toward clarifying. This was simply a 23 typographical oversight and a correction tha t does need to ' 1 24 he sade. It does not include the two suggested changes by 25 vay of enclosures that we have just been discuscin that ALDERSON REPORTWO COMPANY.18ec.
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1 originate. from: CGCi and it .does' not include any f urther. 2 changes soot' recently identified by Commissioner Bradford.
, 3
'; CHAIRXAN AHEARNEs That would have been~very 4 difficult.
5 CDRII55IONER BRADTGRD: That would have been hard 4 to'get in. 7 CRAZIMAN AHEARNE: Yes. 8 All right, can we start on page 1 The question 9 on page 1, Peter, you in many places have changed 10 "a ppropriate" to "ef f ective. " Can you describe */ hat the
- 11. significance of that is?
12 - COREISSIONER BRAD 70RDs Appropriate just to se is 13 a lazy word. It is sort of a substitute for thought. . 14
" Effective" seans something.
it doesn't mean a whole lot 15 acre , but it means that we actually think they will work. ' 16 CHAIR 3AN AHEAENE: Can I ask the Standarfs of fice c 17 to tell us whether there is any difference 'f ron a regulatory 18 standards approach on " effective" versus "appropria te." 19 . MR. GOLLER: Yes, sir, we think that there it a 30 substitute difference between those two woras. 21 CORRISSIONER BRADFORD: It could be ineffective , 22 and still be appropriate? 23 (Laughter.)
, 24 ER. COLLERs No, sir, but I think there is a 25 diff e,rence in seaning between the two words as uset.
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21 i CHAIR 3AN AHEARNE: Could you try to describe the
; 2, difference?
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In coing through your comments, e 4 and we' only had about a half hour to go through them, in p , 5 real. quick analysis, when you have an energency you take '
, 8 appropriate protective sensures. Now, you have to consider 7 the weather. You have to rensider s lot of. things. ,
You say. t 8'not evacuate because of six or ten-inches of snow outside 8 You just any take shelter. That would be appropriate, but L s 10 ~1a some people's ainds that any not be totally effective. 11.We have gone all along in our regulations that you take ' 12 appropriate Per)tective measures. You know, who determines : 13 what you have done is really effective? ( 14 COBMISSIONEB GILINSKY: ' dell, appropriate means 15 you take the right ones. The way you chose the rioht caos 16 is on the basis of effectivanesse Now, they may not he 17 to tally ef f ective .
- 18 5R. XENNEXEs Mike's point is some sensures may 19 reduce your doce f urther but may increase your ris(s of 2 other kinds. -
21 3R. JAzcCCHIANs With appropriate you take 22 everything into consideration. t 23 3R. KENNEXE You sight save another ten rens by 1: 24 driving through a crowd but it night endanger your life to 25 d o so . l l t AtosnsoN REPORTING CoWAW mC.
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2' 55. KENNtKEa Se that says it would be 3 inappropriate although more radiologically; effective. . 4 NR. JAEG0 CHIA 5a' Effective, yes, sir. j l. 'S II. KENNERE: I think their interpcotatica of 8 effective seans radiologically effective whereas appropriate:
. 7 seans effective in an overall ris'k kind' of contest.
8 C3ENISSIONER SRADFORD: But we are'saking a 9 finding as to whether a particular plan provides reasonable 10 assurance that effective or appropriate, but I as saying 11 effect1,ve measures can be taken. t 12 s ay that It seems 'o me if we can't . the plan provides reasonable assurance of eff'ective 13 seasures then we ought to be thinking some more. I mean if , 14 in f act the elisate is- such that it is so likely th a t th e - L I. 15 seasures which we would consider appropriate vculd not also - 16 be eilective, then there are some sericus questions aboitt a ! Y 17 plan is that climate. ' 14 MR. JAMCCHI4Ws Isn't effective more. inclined to 19 be looked at as af ter the fact? ! 2D COEEISSIONER CILINSKIs No, but this has to do 1 21 with a finding before the fact, as Peter points cut. In i s 22 other words, it may turn out that you were wrong, but in 23 asking the finding initially it seems to se thst you hsve to ' L . 24 aske it on the basis that you think that effective action L L 25 will be taken , or a t least you have reasonatie assurance. ainesom namsmNo cowamy, sec. . i a00 Vmepaa ave,8.W., WASMNOToN. 0.C. 20024 (202) 944 2348
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] 1 CHAIRIAN ANEAREE: Mike, why don't you and Cari ;
2 come up here to the table.
, '3 88. COLLER: Sofore you take actions which you
'4 consider appropriate which eight even be anticipatory, it-5 any turn out that they were unneces'sary'or the accident had 8 taken some different course and the action you took wasn 't 7 ef fective at all. .
8 C03HISSIONER CILINSKY: But that is a whole S separate question. 10 CHAIREAR AREARNE: Mike and Carl, sit dove, 11 please. I suspect you will be here a while. 12 (Laughter.) 1 1J ( At this point Nessrs. Coller and Jam.gcchian take 14 seats at the ta'ble. ) ' 15 COMBISSIONER CILINSKYa You are talking ahout 16 findings that one is making in advance of any exercise of 1 17 these plans or measures. 1 18 i CHAIRMAN AHEARNE's Let se ask the lawyers -- l 19 really no intent meant, Peter. Let me ask cenatal counsel. 20 3R. EICKWIT: I agree with Standards that there is 21 a difference. . 22 C0dHISSIONER BR ADFotDa Ios, I agree that tnere 1.v
'23 a difference.
24 CHAIRMAN AMEARNE: What kind of difference? 25 XR. BICK'4ITs i The di_.~erence, I think they hit i t l Q M h. $ $#g @ %Ad ted e @6dtted.Wehe S. A memee samme se e me . e
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'N 1 on.the head, that a ppropriate en tails some interest 2 balancing, who'reas effective is an absolute word. It is 3 either effective or it isn't effective. So in answer to '
4 your question, it could be ineffective and appropriate in 5 the ' sense that it' would not be totally offective. It could [ 8'be appropriate-vithout being totally effective. 7 CHAIREAN AHEARNEa Let se ask you, !.en , let 's just l 8 consider that we are trying to do an assessment of the 9 energency planning seasures of a plant, any particular 10 plant. Whether it our staff or TEMA staff that is looking ( ) 11 at that, what kind of a criterion would they be looking at? \ 12 Would they be trying to judge whether the measures. that are I 13 being proposed,12 I say they are appropriate doesn 't the ' 14 sense of appropriateness carry with it the sense of what is [ 15 appropriate is scaetning that would be effective? 16 XR. BICXVITs Yes, but if you are asking me 17 whether there is a difference, I think we all perceive a 18 diff erence here. The policy judgment is do you cant thea --- IS CHAIB!AN AHEARNE: Let's ne: say "we" because, ; 2D unfortunately, my prob 1 : is that I as not seeing the 21 difference. 22 XR. BICKWITs I see. Well, I think there ought 23 not to be a dizference. There c6uld be a diffarence. l 34 CHAIEfRN AHEARNEs Well, I don 't think there ought 25 to be a difference.
- 9 1
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l 1 CORRI55IONER HENDRIEs If there is a difference,, E these people that perceive a difference ought to vote for
,. 3 appropriate. '
4 . COXXISSIONER BRADFORDs Ch, no. 5 CORRISSIONER NENCRIEs Yes, because the proper
.. 8 action for protection of the public in some circumstances 7 any be no action. Okay?
8 CDEVISSIONER 3RADFORDs That say also be the 9 effective action. - 10 COREISSIONER HENDRIEa If you perceive a 11 difference and would rule out in some peculiar circumstance 12 zero action as being, ineffective on the face of it, then you-13 have to agree that approprite in the word that is needad l
- 14 here. -
15 C033ISSIONES BRADFORDJ On the contrary, what I as 16 saying is'that at the point where a finding is beine made 17 wh a t we are doing here is setting the finding that is 18 nece ssary for a license or f or operation. If you are I 19- conf ronted by a situation in which the only effective action 23 is one of the sort that socebody, perhaps it was Al who 21 hypothesized that people would have to drive through a crowd p, 22 in a hurry to get away, and you could say, all right, that 23 plan c'an be licensed because then the effective action is 24 g oin g to be for that person to say where they are nn1 not 25 l ALOGRSoN AfPoRTINo COMPANY. INC. L.a . - _ _ _ _ _ . ...__ _ .._ _ _ _ . _ _. . _ . _ . _ _ _ _ _ _. _ . _ ._. _. _ . ..__ _
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f{I 1 get away. I as saying that is not a standard I as prepared
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3 finding that there are effective actic , contemplated by the 4 plan and that you have reasonable asstrance of keing able to - 5' do thee, never sind if there is a tornado bleving or 6 something of that sort, then I don't think the finding ought 7 to be made. 8 I doosee a difference in the sense that the word ! 9 " appropriate" -- it is as though you had two' circles and l i 10 then they overlap. There is hopefully a very substantial . L 11 L area in which appropriate and effective mean the same thing, 12 b u t there is an outer shading to appropriate in which you 13 could rationalito the situation by just shrugging and 14 saying, well, the appropriate action unfortunately is veing r 15 to do a lot of damage but ve st! '. agree it was the !' - 16 appropriate thing to do and the plan should be there. I ! 17
- Wha t I as saying is that in that area where the 18 finding could be that the action is appropriate but eculd p
L 19 not be that it is effective, I would have some deuht about 3D the feasibility of making a finding that would termit a 21 license. 21 C033ISSIONER HENDRIEs You would conclude that 23 even though in a particular case the judgment might be that i 24 in 99 percent of what are already not frequent events 3 effective action could occur but that in cae p*: cent of such ALDet0088 RWORTwee COMPANY, sec, ..
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! <N 1 ev'ests it.aight- be questionable whether sffective action 2'could be taken that would deny a. license? I' 3 CORRISSIONER BRADFORDs No, I don't-think ze. I '
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4 as not sure I as following you, but if you have 99 percent 5 assurance that seems to se to be reasonable assurance. 8-COREISSIONER RENDRIEs Well, it certainly to my s 7 view is reasonable assurance in teras of the statutory 8' standard. What I as pointing to here is that the difference
'S perceivec between effective and appropriate, the .vord
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- effective" to the staff, and I think it carries also for 11 se, 'the sort of connotation that all of these sensures in 12' all cases' vill have to reduce dose and so on, that we cannot
*}
-13 contemplate any circuas'ctnce in which that might not happen.
14 , You then are confronted with-the following - 15 situation anywhere north of some reasonable latitude that le for one' day in every four or ten years or whatever you vill l 17 have a sufficient snow blockage of the roads so you car't I 18 evacuate. If something happens on that day you aren*t going 18 to be able to move. people out and you take appropriate 20 action. That means telling them to stay inside which ther 21 vill probably end up doing involuntarily but it is certainly 22 not the sost effective action, or may not he the most 23 effective action for people close in. 24 Io use the word " effective" throughout the rules 25 suggests that that in an impermissible situatica and I think e ALDSR$oN REPORTING COMPANY, INC. dM gg Acene dem e See Se t e #4 eet e N#8 * * * * * * * * * * * * * * * **
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.it is that connotation which worries some of us who see a 2 difference between the two words.
3
.c CHAIt!AN AHEARRE Let se ask Peter whether that 4 is the connotation he means?
5 CORRI55IONER BRADFORDa i: It seems to me that for
.. 0 the kind of situation which you are talking about, abnormal 7.venther conditions or sort of a meteorite hitting the piant '
8 which produ=es an instant release of large quantities of j; 9 radioactivity and thereby denios you all of the warning j 10- times,' assumptions about warning times that are built into
- 11 the systes, that those are unlikely enough that they get 12 swept away under the reasonable assurance question. J s
13 What ene is worried about is a situation where an ', i 14 accident occuring on what we eight call normal weather with 18 noral warning tises you would still be unable to make a t 16 finding that effective action could be,taken. Ihat is the l t 17 situation which I as saying. If y:ou ca n ' t a sk e t h a t 18 finding, there probably shouldn't be a plan. [ 19 L .. CMAI24AN AREABNE: A1, did you have scaethine? 3 .it. KENNETEs Let ne make a suggestion that it 21 a seems to me the difference is one of two general approaches [ 22 to effective action. That is shelter versus evacuation. I L i 23 think it is evident in the conversation. ! 24 ! I guess I would agree with Commission Bradford l 3 that if one vculd say that the typical conditions are such, 1 i l 1 atoanson aeronmo conspauv, sec.
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29 1 that you can expect people to be unable to reach shelter h 2 bocadse of probable weather conditions then I think he
, 3 definitely has a. strong point. If that is not a question, 4
then we really are splitting hairs over the word "effeetive" , 5 because we really choosing between the relatietly effective 6 choice of shelter and evacuation. The evacuation may reduce 7 the dose more but it say be an overall greater risk to 8 achieve. So let me suggest a different phraseology that 9 perhaps could split the difference'if I say. 10 . CHAIB'AN d AHEARNEa If we say effective and 11 -appropriate that is not splitting hairs. 12 (Laughter.) 13 MR. XE."NEKE4 I thought about it first, but it 14 didn't go over very well. Let me try it and maybe it comes 15 to the same thing. I don't think so. Reasonable assurance 16 t ha t an appropriate choice of effective protective netsures 17 that can be taken will be made. That is a little different 18 than effective and appropriste. 19 COMEISSIONER GILINSKYa There is one qualifier in 20 reasonable assurance. If you put in appropriate there is 21 another qualifier. It is sort of a hedge word. 22 CHAIR!AN AHEAENES Carl. 23 XR. GGLLERs He just touched on the ;oin t that ! 24 think indicates that "approprate is the right word. In many 25 case there night be sore than ene effective way of doino ALDER $oN REPORTING COMPANY, INC.
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30 1 some thing. There eight be any ausber of effective vars. 2 One best way, that is the appropriate. var, that is what you 3 vant to ask for. 4 CDERISSIONER GILINSTYi Any one of thes would
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5 qualify for effective. 8
- 33. COLLERs You don't want any one of them. You 7 vant the appropriate one.
8 C35EISS.IONER BRADFORD: Wait a sin ute. There is 9 nothing about appropriate that requires you to choose the l 10 b e st . l 11 NR. GOLLEBs That I think is inherent in the word 12 "appropriata" is that you want the best. . p 13 l CHAIRM,W AHEARNE: I was going to.ask Peter what 14 his reaction to Al's suggestion was? s 15 COE!ICSIONES BRADFCBD Well, Victor alrnady I i i. 18 think articulated it. I would look for the flexibility in 17 this sentence' in the phrase "reas' enable assurance." Tor at ( 18 it is enough that a reasonable man ast,essing the plan s 19 reasonably would find reasonable assurance of effectivo 20 protective sensures. The blizzard every four years or the 7 21 bridges being out at the time of the accident I thick have I 22 to be taken as adding to the original low probability of the ' l'.- 23 accident and not falling within the reasonable asserance 1 24 question. 25 In the way I have heard the word "1.;;re p ria te i l ALDWtsoN RM Cot #ANY. INC. l .___._..___._-_______--._-_-_-____.._.__..__.___. .
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A ! 1 being used wes14 aufgest that there really is withis it se ! 3 barrier to siting a plaat la a heavily peggiated area i l , 3 because la that situaties the appropriate action will in all 4 likelihood be shelter because evacuation vill never he 5 possible. 8 ER. JARGOCNIANs What about deleting " effective" ! ! 7 er
- appropriate"? Reasonable assurance that protective 8 seasures can and will be taken.
I 9 CORRISSIONER GILINIXYs Well, that is kind of weak ! I 10 because that doesn't say such of anything. It is reasonable ; 11 assurance that the public will be protected is what this is ', i i 12 all about. That is what our regulations say that the public
- 13 vill not be endesgered, or something like that.
14 CHAII!AN ANEARNE: Victor, you had a comment. *! il 31. BICXVII: How about t h e s t a tu t o r y s ta n d a r.d. , 16 legal assurance that the ;uh11e wi.L1 be adequately protected? I 17 CHAIRMAN AHEARNE: I t. the event of s radiological ' D 18 e ven t . i 19 Vell, Peter? l 20 CCEXISSIONIP. CILI.4SXY It seems to se that i i 21 reasonable assuran=e of effec'tive protection adds up to ; 21 adequate protection. i 23 WR. KENNEXEs I think the staff 's f ear is that O' !.C 34 words as written will drive the reviewer to say that only *
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9 , p 1 CDIIISSI0ftt CILINSR!e There is mething here 1 abest evacuation. 3
- i. EP. KENNEREs No, but I think that is what is 4 behind their concern, that there has to be a n option besides I evacuaties.
j 8
' C3RRISSION ER GILINSKTl I sian Joe brought up the l i
7 question of evacuation versus people staying indoors. if o v , l S as f ar as I understand your views, yet regarded that as J l 9 effective protective action. 10 RR. WICKWIT: Why don't you strike " reasonable 1 11 assurance *? i
- i 12 (Laughter.) ,
13 ! it . E7CK'JIT t I don't see how the Consissioners l ( l 14 can say that the statutory standard is the wrong standard. ! l mn _ 18 I mean, it is the one that we use til the time. to why . 18 d o n ' t you staply sty that onsite and offsite energency l \. 17 preparedbess will adequately protect the public in the case f it of a radiological esorgency? ! 19 CH AI3M AN AHEAP.NE Do yee have any proklis with E that? , 21
, C033ItsIONER BRADTotDa roll, if the inclination i B is to go in that direction I voeld just chanpa effectiva to I 23 aseguate in the formulation I have already proposed.
1 Ihen ' M the phrase becomes adequate protective instead of adequate
- E protection, but I think that is close encuch. ,
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Ii 1 CNAIRIA5 ABEAIRE: Any probles with adeguate? The ; 3 difficulty I as havias is that I would have alvars thought 1 i {h 3 that appropriate voeld have beta effective. 4 C0tBI55IONES git!3 Skis That is whtt I thought. ! 5 I CRAIRMA5 ANEntNE6 But you see I verry because 4 { {. 8 Peter if finding a probles with appropriate. All of then 1 l I 7 seen to be equivalost to me. . 8 CORNI?sICIE3 GILINSKfs Appropriate is a vaguer 9 word . i
. i
- 10 CRAIRIAN ANEARNEs Once the lawyers start telling
- - 11 se, well, no, they are a little bit diff eren t, then I f eel l 12 very uncomfortable because I as not sure wha t all the
,( 13 nuances really moan. .
- 14 ER. K[1,NEKEs The implication in Consissioner .
15 Brad ford 's terms as I see his objection, is that you any do i 14 literally nathing to red uce the dose. In their care you 17 have only one option. 14 CHAI3YAN AHEARNEs But you see the probles I as it having is that the interpretations of the misuse of the 3D language is outside of the -- what is that nice phrase that 21 you introduced at one time -- rule of reason. l 22 3R. XtNVEKEs Adequate sounds like a good 23 spittting in the middle that both sides could live with. It
. M wouldn't be a code word to either side.
25 CHAIL. TAN AHEAPNEs Peter, adeq ua ta is at tq uate t s.
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,; 3 C05I15tI0sti NENDRIEt I think the word you really 4 vant is appropriate.
5
, (Laughter.)
g CDIBI5SIONER 33ADFORDs The word you really want 7 is appropriate. i s (Laughter 6) ! 9 CORRISSIONER NENDRIEs To the extent that people i i 10 see some sort of climbias se, ale of rigor in the requirements [ 11 then that vo'.' ries se with regard to moving off suddenly to a L I 12 new word. { 13 Now, if somebody tells se, as you do, John, that { 14 it seems to you ':ht t i the appropriate sensures are effective, l i 15 you know, as they turn out in e' given circumstance and they j 16 are also adequate in the contest of the cireuestances, then 17 I can agree with you that any one of the 'three words vculd i 18 serve because they ser.n about 'the sana. 19 { If we have decided now, having worked on the rule 1 30 f or, wha t, 15 months, or something like that, that on the 21 day we had hoped to come to a flaal vote that we are nev Et going to establish a new standard for energency planni:; ty 23 using " effective" instead of
- appropriate", why of cource ve 24 say, wait, let se think about what that means.
25 { fon know, ar's you nov triving in the direction to ALagl00N Ap0RTust COMPAWy, est. egg wnmpaa AVE, a.W., WAGMNIWFON. 0.C. Need f atti Sk3388 N -
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- O - 1 r, 2 = . ===, a t d. >> re.=ti > I = =ain .- l 2 as, it dessa's mean that there any set be circumstances !
3 where it teras est that what will have to be done is mething l 4 and people just stay where they are. That is all right. If i 9 yea say, well, if t hat is the best you Saa de sost any time,- l 8 why that is a probles. All right, ne difficu' Ity with that.
.. 7 So you tell me, as, it doesn't mean every time. Does !
8
- effective" mesa that people don 't get ang,exposuret !
8
.CORRISSIONER BRADFORDs No. Incidentally, I think 10 ve have gene free effective to adequate, or at least I !
j 11 h a ve . Ist answering for either one, I wouldn't have said it . l 12 seant no esposure because the whole rect of our rules don't .i . 13 anywhere take the position that zero exposure is enquired to i.( ' 14 assure adequate protection of the public health and saf,ety. ! Il C05MI55IONER HENDtIE: As a easter of fart, the 4 it whole thrust of the rule as I perceive it it that we de ! 17 thines with plant design and operation to try to keep thines 18 f rom happenlag. ' Then you say if something does ha;;en it 19 seams sensible to us to have pre-existing plans and l 3 notification means so that we can take whatever ressures are 21 practical to be taken in the particular circumstances as 21 they may octor to reduce the radiological hazard. The l l* B circeastances rey allow that to be extremely attractive. l
- l. 24 That is, there say he aspin warning times. and I have got a !
5 feeling that is probably the likely event, and that indeed - ALDWISON n0POR7980 COMPANv, Net. l 400 VinguaA Avt. S.W., WAaMSe87oN, o.C. 20034 (291) $$4 2344
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at*****>r**==a ' 3 harried way f rom arenad the plaat and indeed essentially S' elialaate the potential high esposeres close in. U. 4 It alsa centemplates that things say save faster l 5 than that and that the best yes could hope for is to pet 4 vert to people to get inside and that some people will hear ; 7 it sad get the word and get inside and some won't, but that { 8 the:e vill be some reduc tion in the exposure by vitere of i 1
- i. 8 having gottaa sose more people laside than would have been 10 the case if yes hadn 't tried. l 11 This whole range of actions that say take place !.
12 following any 71ven circumstance, what you want is a plan ; I o 13 that sort of gives you a reasonable basis for recossending
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14 those actions to people and having your local police force i Il attempt to implement them. ' 14 i Now, if there is aise as you read the rule asse i 6
- 17 sort of requirosent here that this he qu'aranteed in all j
4 18 circtuastances and result in either :ero or very low ' 18 exposures in all circumstances, then I must say that scos , 3 voll beyond the place that I see energency plannins and in j 21 fist to a place that I don 't think can be achieved. So I t B have concera about, yon know, the changes proposed fros > E appropriate to effective and I can't quite decide whether ! M ataquate is, you kaov, back down a step or is it at the.saae B level laterally or where it is. : l l . t ALDet00N aPORTget CetIPANY. Ser. 400 VIDGuaA AVE. 8.W., WA8MueSf0N. e.C. 30004 M 904 2388 -
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- (7'y 1 v It' worries as that thoso Ucrds now appear te he l 1 eseing la late in the state of ceasideration of this este 3 that sees to have sa tap 11 cation that we are establishing a 4 nov ~ standarf not con templated in the consent period and the 8 extensive discussions we have had heretofore. Now, saybe it 5
# slaply reflects flaal writer focusing and more careful 7 focusing of our individual views on the satter, but I as not 8 all that happy to go through at the last sinute and change a 9 lot of words which , clearly have implicatior.s that I have 10 trouble seeing where they lie.
11 . CORNISSIONER SIADTotDa Obviously with the l
'12 concurrence 9f others I wouldn't insist on a vote today, 13 although I would like to be able to vote today, but I
( l 14 c,ertainly wouldn't want to do it in the f ace of fooling that l i il stuffy I have circulated at the last sinute puts you under l 1 16 the gun like that. i 17 C332ISSIONIE HENDFIE: I think it is tote than 18 s e . '4h a t I am trying to discern'is, you know, sho I 19 perceive this now as presenting a second language in which 1 1 3D consenters haven't had a chance to sense wha t all is here i 21 sad make consents as they sight if they had so sensed. I 22 don 't kaov. I can't tell whece you are going with i 23 ef fective. 'Jhat does it mean. , 24 C0!EISSIONER BRADTCPD4 Let se trying that once i H. l 25 ac r e . First of all, as to the business of quaranteet that i 1 l l l 1 l ALoensons aposmme cowAw, sec. de0 VWIGes N/t. 3.W. WASMWe0Tofs. 0.c. 2004 (202) 884 2348 I l 1' ~ . _
'n ee<. 1 O 1 ce ese voelt be esposed or that you would be able to 3 evaceate a kvadred percoat of the time under all conditiea0 k' 3 I really think the phrase " reasonable assurance" takes caro l
4 6f that and that there is enviously i difference between 8 havias reassaanle assurance or somethia, and ha ring a 6 guarantee. I We one would sat that those were synonymous. i i L 7 ! For the rest, it is one thing to say that withis ! i l 0 the fraseverk of the plan you would espect there would be 9 some days la which the best you could de vould be to 10 recossend shelteries. I agree that that is true and 11 certalaly that the plan should contemplate that under those l I 12 conditions that that is what would be recommendes sad
.I 13 shouldn't compel you to try to evacuate when you couldn't dc i
{ - 14 i t . 15
-CONIISSIONER NENDRIts As a satter of fact, Peter, l
l 14 there vill be some days when you won't be able to +recute 17 the plan at least for lialted periods because anything like 18 a siron system is bound to have a dova time, you k.9ev, of I 18 don 't know what, but some small f raction. 3 CDIBISSIOVER at&DTORD: But at the roment you are 21 saking the findias about the plan's adequacy for the future, It then it doesn't sees to se that the plan has to be found i 3 inadeguate just because you know that there are reing to be ; 24 some periods of time whea yes can't do that which you would ! 3 really like to be able to do whether because of the ! [ s-ALoreau pePostsee courawy, set. : .
. ensveteena Ave, s,w wA4Musetta. 0.c.atee's sage se6,5 .
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.: 1 conditions of the accident er the conditions of the weather.
2 I de think that the flading as ,te what yes veuld 3 espect to prevail during moraal er even sesewhat less than 4 seraal conditions eacht to be of a level of adequacy of 5 effectiveness. What I have gathered free the staff ceaseats ,... 6 with regard to what ther perceive as the difference between h 7 adequacy and effectiveness on the one hand versus : 8 appropriateness on the other is that there really could be 9 situations in which the vert "appre'priate" would be takes -- [ 10 and b'y situations I mean at the time the plans were beia, 11 reviewed -- the word " appropriate" would realir be taken as f
'12 seaning more or less do the best that you can. '
13 ,,, CHAIR!iN AHEARNEs As a normal mode. 14 , , COMEISSIONER BR ADTORDa As a norsal mode. I do i il think that the word "atequate" or "effnetive" takes you a ! 16 level h15har than tha t. 17 C05EISSICNR GILIN3KY6 That is wha t I thought ! i 18 heard Joe say. I hope I sisunderstcod you, but you seem to : it be saying that what we need is to have assurance that if E something hoppens they will do the best they cte. , 21 CHAIR *n3 ANEARIts But you always want te do the - 21 best you can. B CDIMI55IONER GII.IS SXYa Ehat we are saying here is ! M that that best will be pretty good i'n most circumstances and - E that is where the reasonable assurance comes in. In other \.
+
Atoste0N SWORfDee C0 era 8tf. sec.
f@
';; i verde, vhat we cenity want t. de is hav. reason.rt.
2 assurance tha t people aren'tl
- going to get irradiated to any
..s 3 enhappy degree.
That doesn't obviously cover every 4 circumstance and it doesn't seas that when the plan is I j i generatty .1,ee i.e there ..a.t ' i
- 5. some peop1e who aren t
.. # seing to get ' picked up la it, but it does sean that we want !
7 ; then to do a bunch of things that will bring their senatal L 8 level of perf ormance up in aest circumstances, doesn 't it? 9 I CONIISSIONER NENDRIts I don't think so. ! to CRAIRMAN AREARIE I think we all agree that the l 11 veight that is'ia a single verd is enormous, clearly. Now, f 12 Lee' has proposed a point which I wonder if it is ;essible. 13 I don't know whs's we are goins to end up today. In fact, I { 1<4 don't knov if today's meeting is going to to the only one of ! i 15 m a n y . Len had pointed out that it might be important to 16 ha v e as a record of decisica underlying where ve and up tha i, 17 transcript o f th e m e e ting . !
~
18 l Let us suppose we choose adequate. I think Joe is i 19 beginning to be villing almost accept that. I at willing to ! 3, 30 accept it and I think the other t'wo are villing te accept [ 21 it. If we choose adequa te, just embedding that word 21 *ateguate" isn't poing to even begin to describe what we > 23 neant by it. 'thereas, if the transcript of the teetiac
,, 24 underlay the decision that might he of help to cose peoyle 25 who are trying to figure out what do we mean.
l ALDERSON A90RTWee COMPANY. pet.
I
.q:: i e .o . - 41 ni xen,iEE. is, I t,y one aere time? i 2'
CRAIREAR AN' EAR 5Es Wait a sleute.
,.- 3 CDBRIss!DsER.3RADFORD: The point there bois, that
' 4 ve voeld treat this as an' official rather than an unofficial 5 transcript?
6 CRAISBAN AREAINEs Yes.
. . 7 !
CORRISSIONER BRADFORD That also contesplates 1 8 reviewing it then. 9 C3ERISSIchER GILINSKTs I think if we vast to sake i 10 clear what we seas we ought to write it down and agree on a 11 statement. 12 ER. KENNEKE: Eay I try one more time, L' r . 13 Chairman ? ( . 14 CHAIRSAN AHEAINE: I just don't think you are ' 15 going to get there. If there is this auch meaning latent'in l 1 16 one word , then there is no way you are going te get
)
17 everybody to agree on what that means. 18 MR. KENNIKE4 Can I crash syself against the rock 19 one more tise? 20 CHAIENAN ANEARNEa Of course. 21 3R. KENIEKE: The staf f by ti.eir holding out for l 22 appropriate, as I read it, they went a choice of sensures. 23 Commissioner leadford wanted to make the point that wha t e ve r l 24 sensure is chosen is effective in significtntly reducing 3 dose. l l An.senson nepowfnes cresPAwy, sec. j I __..._m.... . - _ . _ _ . _ . _ _ . _ . . _ . . _ . . . . _ _ . . _ _
E 1 . f2 ([ 1 C3RRIS513NER GILINSKY: 3 . la sest circumstances. Rt. REIREERs la seat citesastances, set an l . sh 1.te 9.a.aates. 3. ese other thin ,ec ai,ht .e is
- . si.1, ..t a ,arenthe ticai a,ter the
. . or. .eas..es that 5 says 'incleting shelterias and evacuation" which is at least l
( l 4 the einisse choice that they need. It mise implies on the i 7 face of it that evacuation and sheltering can be effective 8 in the teres that I think you wish without changing any 9 other words. That deals with Consissioner Needrie's concern 10 about changing the words throughout. 11 i CORRISSIONES CILINSKYa can I ask a question? 12 [ CHAIR!AN ANEARWE Go ahead. ' 13 t CDERISSIONER BR ADFORD: Go ahead. Yes, by all i 14 saan s. . 15
. COMMISSIONER GILINSKY Carl, does appropriate not f
i 14 nean to you that in sost circumstances the action will be , i 17 ef fective ?
- 18 ,
7.3. COLLE!a Yes, in oost circumstances. 3 19 t CDEEISSIONER GILINSXYs The most circumstances la ! at taken up in the regsonable assurance. Then what is your 21 objection? i 22 CRAIBFAN ANEARNEs I could also ask the oppocite 23 theath of you, Victor. If you agree with that then you
, 24 shes14 have no probles with appropriate. 1 35 CDEEISSIDMER GILINSKY I don't think so.
d
. \
atastoon seemuse cowANT. 888. -
. . . .. . . .... ~ . , - - - - . . . . . . ~ . ~ -
d
43
'([' 1 ER. COLLER: Let se pelat est that in felleving 2 sentences of that paragraph the verd "adeguate* is used 3 several times in relatia, it to FEIA's findings. Therefore, 4 the verd "adeguate" sight be the preferred word in that the 5 beltace of that sentence goes on to causerate or define what 4 is metat by adequate.
7
. . RR. JAECOCMIANs Well, if I say approach that. In 9 vritias this there was some concern as to.whether we should 9 put down adequate, appropriate or effective. In the other l
l 4 sentence that Carl brought up relative to the plan itself I 11 used the . word adequate because la writing a plan a licensee i ' 12 and we, NRC, can judge what an adequate plan is. He has got ; i i 13 good comannications, good notification, good assessment !
, 1-4 capabilities and / cod training. Ihat is an adaqua te plan.
r
- 15 I stayed away fros adequate and effective I 18 protective mencures becausa how do ycu plan !ct effective l
17 protective measures. You know, that is usually after you i 18 have had the accident you then say, yes, those vero il effective protective sensures. Nov vould we judee that a 20 licensee planned for adegotte or effective measures? That t 21 depends on so many parameters. 22 CCEMI55IONES GILIMIKY You have got some t El standard, and the standard is you want in the event of an 34 accident up vant an adequate plan. 25 t C083ISSIONER HENDR,IEs You want an adaquate flan
- r f
ALOGISON ar0RTte6 CatFANv. Sec. u . . .u. . . . . .r- - - - n-- ,nn. . - - . . - , , , . , . - , . - _ - - n--,,,,~....~-.,-n - - , , . - - - . . . , , . , ,
l
, . e., , ,' .
c {r ,b,7' .6
~} 1 before the event, if there ever is an event. 'If an eveat '
3 essere yes vast to be sure that appropriate sensures have ' 3 and will be taken. 4
. C3IBISSICNES CILINSKYs You want to be aure, 5
tensonably sure that en the basis of this plan acties will 8 he takes that will keep people f rom getting irradiated to 7 any substantial degree, . 8 It. JANG0CMIANs We are on a fine line. I just i 9 vaated to let yee kaov what was thought about when draf tias 10 this. Also, we wanted to be consistent when the EPA 11 Protective Action Guide Bancal. Throughout there they talk 12 sbou t appcepriate protective sensures as well as the old 13 Appendix E. ,Esergency preparedness has al'says been. 14 conceived as having reasonable assurance to take appropriate 15 protective sensures. I think that is why ve are having such j 16 a ha ssle with just one word. It is a significant word. 17 at. KENNEKE: It is a code word, there is no* doubt 18 abou t it, hi sto rically. 19 C3!RISSIONER BRADFCID: Un11, adequate ir an 3 30 historical code verd, too, just in a different contaxt.
' F1 3R. KENNEEE Vell, I offered a suggestion that 4
22 venid give thee their choice for that. 23 C33NIS5105ER BRADFORD: I think adecuste is broa'I 'i M eneath. I don't have the same coccara, I guess, that fictor .! 25 does about the transcript being available as in effect ei Austoms apewress comenwv. esc. .
._ _ _ _ _ _ . . _ - - _ - - - - - - - - - - - ~ ~ - ~ ~ ~ ~ ~ ~ ~
( 1 role-eaking hastery. I have a sesewhat differest concera, - 2 which is that it is going to be very hard ter anybody to
,. ~
3 entract free the four different sets of Commissioner reearks' 4 anything that they can use very definitively. ! 5 CORII,SSICIER GILINSKYa Vell, it is available to 8 read . * '
, . '7 C03XISSIONER BRADTORD4 I would use the eerd 8
- adequate" and would figure that it is broad enough not to f
9 need elaboration. ' l 10 l CDERISSIONER GILINSKYs Rosind se again about the ! 11 statutory 1saguas,e that speaks of adequate protection of the I 12 public. Is it reasonable assurance of adequate protectiont 1 13 ER. BIOKWITs
** No. The statutory language is ---
- l
!' 14 .
C35IIS'iIONER G11INSKY4 Is ate;uate protection. i ' i il The regulations speak of reasonable assurance that the 18 public will not be endangered or something like that. I t 17 frankly think one puts in reasonable assurance when you are 1 18 talking about the public vill be protected. 19 CMAIRM AN AHEAINEa I would argue for just tecrpine l- . 3D any modifier and just say the protective seasures. 21 COREISSIONER GILINSKYs Well, that doesa's say 21 aarthing about what kind of protective sensures. You mean 23 reasonable assurance that the public vill be protecto.t. i 1 34 Bill met be cadan'gered is the standard langenea of our 2B regulations. I i l l as.asneau neronises company, eso. 1
. . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . ' - , - . ..%-, .-.....-,m.m.- .-~ .--, _. . . ~ . _ _ __.._ ,.-.--- ,_ - ---
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- 46
/ 1 CRAIthAR ARIA 35Es Reaseamble asserance that the
{ 2 public will be protected la the event of a radielegical
,. 3 esorgency.
4 Joe, how de you feel abent adequately protected? 8 l CouMISSIOVER RENDRIEs That is not guite what this ;
't says, is it?
They says you want reasonable assurance that 7 seasures, appropriate, effective', adequate or just sensures i i. 4 can and will be taken la the event of an energency. , You ! 9 judge that by seeing that there is what is later etiled an l 10 adequate plan, et cetera. 11 i
, Mt. COLLERs I think you voeld lose an important I i
12 part of the plan if you deleted one of these verts. : 13 i i (Laughter.) ! ( . 1<4 CHAIRsA3 AHEARNE: We are not going to get past 18 page one if we don't change one of the words. t i 16 (Laughter.) 17 .t F. . ;0LLER: On this point the staff vecit
- I 18 recommend adequate af ter having heard this entire i 19 discussion. At least in my mind an importsat part of that i 3D conclusion is that the word "adeguate" is used as a i
21 follow-up. . i 22 CHAIR. TAN AHEAR3Es !a order to move forward I 23 think I will vote for asegnate. t 34 I as not sure if yes ever voted, Victer. ' 4 25 C0!MISSIONE3 CILINSKf4 I don't th ir.k I di t . Atameos asion?sse commwe, sec.
........e- ._a,-....<.
l
+ l 47 1
CNAIREAR ARIAINEs Would you go along with 2 adeguate. 3 { Vell, let se hear what Joe CORRISSIONER CILINSETs l i 4 says. 5 CHAIRMAN AHEAlfts Two votes for adequa te. i 6 ) Victor would like to hear Joe. '
,, 7 Joet ' i l
i
. 8 CDRNI55IONER HENDRIE4 I still think
- appropriate" !
8 is the t pht word, but I geess I.would settle ou's if it 1 10 would get us on. Yes. i
- 11 CHAIREAN AHEARNE4 Okay, ve .have got three votes 12 for "adequat e." l 13 MR. COLLERs tr. Chairman?
14 CHAIRMAN ANEARNEs Yes. 15 E3, COL 1ER: This discussion has teen on t 16 para;raph in the supplemental inforsation. i
- 17 (Laughter.)
18 gg, GOLLER8 The one that reall) counte is the 18 regulations. If yon look at page 31, for rose retten no i 3D change was suggested there. I would presume at this peint i t E1 ron would want to sake the correspondine change in the rule ' i 22 i, t s elf . 6
.' 23 CHAI1JAN AMIA33!s Do you via many arcunents, Cari?
24 (Laughter.) 5 C3EEI5510SIF. BIADT0FDs You are absoluta17 ri;ht, ; AkaWItoW spoRTune COMPANY. sec.
ma 1 Carl. Thank yet. .' 1 CHAIRIAE AREARREa Thank yes, Carl . On page 31 0 . 3 yee say? 4 i . MB. GOLLEta Page 31
- i. 5 l' CRAIRIA8 AREntats ' Where?
- 8 CORRI53109tR HENDRIE4 You are on the wrong one.
$ 7 ,' CORRISSIONER BRADFORD4 Page 32. You and I are en ; 8 the same one. *- :' 9 l (Laughter.) i 10 33 c0LLERa I must say it was curious to me.
- I 11 l was wonderias why the same change wasn't made there.
- 12 )
CH AIRXAN AHEARNE Page 327 l 13 - ! COEEI55IONER SIADFORCs
. Page 32, (a), line three. t l
i 14 , CHAIRMAW AHEAR,NEs All right,'page 2. Peter, yes ! j 15 had some changes to page 2. t 4
- 16 !
- COMMISSIONER BR ADFORD
- Just one. i
!' 17 CHAIRMAN AHEARNEs ! Could I ask the general coungel ', } ! i 14 what is meant by a rebuttable presumption of adequacy ? I 18 l RI. BICKWITs It means that is thm way the ; } 3D at$sdicator is going to es saless somehedy ecser la and ! 21 ceavinces his not te se that way. If TERA finds that it is i 21 adegente, then the IRC will find that it is adequate unless 23 seseene ceavinces them otherwise,. l M CRAIRWAX AREARXts Esther than starting on asutral S 35 stoand that is assened to be true unless preven otherwise, e l N N MANY, K
, ,--am.--r--e
ee. 49 1 that Assee? 2
- 33. SICKWITs Tha's le right.
.. 3 CNAISEA5 AREA 13ts Now, the other point, feter 4
. that Feu have raised is that the issues say be raised in sa 5 Rtc operatlag License he6tias.
6 CDENISSIONER 3tADFORD Yes. That is not a nev
.. 7 point.
That concept is stated f urther on in the rule. I 8 don' t resember exactly where. That doesn't change anything 8 but it does sake it explicit. ' Itt CHAISBAN AREARNE: Standards, any cessent? 11 XR. GOLLER4 Well, again, I have to look back a t 12 the rule itself. 13 CHAIRMAN AHEA2NIs Carl, let me ask this issue ( 14 th a t is raised en page 2 .
' !s your point tha t it is not in il the rule?
16 33. 3;LLIEs The words that are suggested in the i 17 rule are dif f erent from the words up front 18 CHAIEhAN AHIAINE: On which page is that? 18 MR. COLLER: On Oosaissioner Pradford'c iommett, 2 page 31, which is the only place these other words appear. 21 We have get to look at that. Page 31. 22 COEEISSIONE3 1RADF05Da Iou ere quita right. : 23 guess I voeld use the language on 31 tack there is there is
.. M a need to have it be identical. I don't think there is any l
25 operative differenze. 0 l ALDWISO4 NEPorfWes CoMPAarf 94.
r 4. l 60 1 l II. GOLLERs There is an additicnal thought in thC l' old words os page. 2 which say that these issue say be raiseC
- g. 3 la an BRC operettar license hearing.
4 C05AIS5!0NED BRADTORDs That thought is is here 5 already. I will have to find it somewhere. I don't think 8 angene had that before. I certainly had not had the notica y. 7 that a TE3A finding was not reviewable in an NIC
, ! 8 proceeding.
I will tell you one place that I derived that 9 fros is that somewhere la the discussion of the rule it says 10 that Congress is considering' going further and making T!5A ! 11 findlags not reviewed. . 12 MR. DICKWITs It weald be illegal if the TEMA 13 findir.gs were not reviewed. ' I, 14 i CHAIh3AN AHEAINEs , I had assumed tha t it was an ; 15 issue that could be raised. i to MR. COLLERs Well, in the word s t.*.a t ycu suggested 17 on p a g e 31, in the rule itself you say are preferthie. !t 15 seems to se that these words are sost appropriate in tr.t ! i 19 rule itself. ! am not sure you need them in the 3D supplemental informa tion. F I 21 C335!SSIONER tt ADTORDs I will tell you th e re assa 22 I put them up there, and I agree that they have to be in the ; 23 rule itself, is that when I read the supplemental .
. 24 intsraation it lef t no uncertain of what the status of a !
25 TEMA finding was in an .9RC proceeding a:4 wit?. sc:a questica 1 . A4.DWha0N IWORTWes COMPANY. sec. w.,n__.-..w,,--.,_n, .
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l s 9 EXHIBIT 2 Nen+cu+uei s:
o , 'g UNITS 0 eTATES . i
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NUCLEAR RECULATERY COMMIS$1EN ' wasumerow.ex.aseos l orece op twe July 24, 1980
' j seemerARY MEMORANDUM FOR: William J. Dircks. Acting ED0 l Carlton Kamerer. Directory gressional Affairs !
j \ FROM: Samuel J. Chilk, Secretar
SUBJECT:
STAFFREQUIREMENTS-DISCL4iShANDVOTEONEMERGENCYP RULE -(SEE SECY-80-275, 275W F2758, 2:35 P.M., WEDNESDAY, 1 JULY 23, 1980, COPNISSIONERS' CONFERENCE R00M (OPENTOPUBLICATTENDANCE) i i ! 1. The Comission, by a vote of 3-0*, approved, as revised, the attached draft i l Federal Register Notice for publication in the Federal Register to be effective i l 75 days after publication. (SD) (SECYSuspense 8/7/80)
- 2. The Comission also requested that:
- a. all applicants and licensees be notified of this actioni (50) (SECY Suspense: 8/7/80)
- b. a final finding of no significant impact will be published in the I Federal Register, prior to the effective date of this regulation; ;
(50)(SECYSuspense: 10/21/80) j
- c. clearance of the record keeping and reporting requirements of the amendment by the Government Accountino Office be obtained.
(SD) (SECY 5uspense: 9/22/80)
- d. the apprcpriate Congressional comittees be informed of this action. 1 (OCA/SD)(SECYSuspense: 8/7/80) l Subsequently, the Conmission approved the insertion of additional language cp page 3 of the Federal Register Notice (se'e attached OGC enclosure 3). ,
Chaiman Ahearne Comissioner Gilinsky ! Comissioner Hendrie ' l Comissioner Bradford l Comission Staff Offices I l l *comissioner Gilinsky was not present when the vote was taken. l l
~ . , . . , . . . . . - _ _ . . _ . _ _ _ _ . . . . _ . . , . . . _ _ - - , _ - - . - . -
m____ ___ _ _ _ _ _ _ . - _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ - . . - _ _ _ - -
Encle'sure' 1 Add the following at the end of the first paragraph on p. ,5: In determininy the sufficiency of 'ilj dge,h - Mr:i atweim i compensatory actions" under this rule, the consnission will examine state plans, local plans or licensee ! plans to determine whether features of one plan can ; compensate for deficiencies in another plan so that , the safety is y level of g g g n forThis _ _ __._, theinterpretation public haa.ithisand con-sistant with the provisions of the NRC Aut.horization i Act for FY 1980, Pub.L. 96-295. I i l 1 4 P e . [ i. P t t P 4
. I e
G
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. . .. . __. . - _ . .. . . . . . . . . - - . .. l l
o ' - l l l I l ( Enclosure 2 i l Replace the first asum sentence / of the full paragraph on !
- p. 22 with tho' following: '
hiter consideration of the public record and on the recommendation of its staff, the commission has chosen a text for sections 50.47 and 50.54 (s) and (t) that is similar to, but less restrictive than, alternative A in the proposed rule. Rather than ' providing for the shutdown of the reactor as' the only anforcement action and prescribing specific l preconditions for the shutdown remedy, the final rule makes clear that for amargency planning rules, like all other rules, reactor shutdown as outlined in the rule is but ene of a number of possible i l enforcement actions and many factors should be considered in deterr.' .ing whether it is an appropriate ! action in a given case. ! e
- 1 1 l l
l ? , l f l t e I L I i e e f
.r.. - ., .- . . . _ _ -..+..~.__e .,,.-..._,__,~.---.,--_.,-_m _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ . . ______ _ _ ____ ___ -- - _s-
r; . . . ; . L . ( , N3 ' ! Zasert the following paragraph on page 3 after the first full l paragraphs In addition to the above, on June 25, 1980, the Com- !. i mission was briefed by three panels of public commenters ' on the rule, one each comprised of representatives from the industry, State and local governments, and public interest groups. Y,ach panel raised important concerns regarding the ! l final rule. On July 3, the Commission was briefed by its ; ) staff in response to these panels, including several nodi- ' fications to the proposed final rules. Finally, on July 23, ' l at the final Commission consideration of these rules, the commission was briefed by the General Counsel on the sub-stance of conversatiens with Congressional staff members l who were involved with passage of the NRC Authorization Act I i for Fiscal Year 1980, Pub. L. No. 96-295. The General i Counsel advised the commission that the NRC final rules j were consistent with that Act. The Commission has relied i on all of the above information in its consideration of ; these final rules. In addition, the Commission directs that ! the transcripts of these meetings shall be part of the ! administrative record 1.n this rulemaking. .However, the ' transcripts have not been reviewed for accuracy and, there- < fore, axe only an informal record of the matters discussed. . E i h e d
veew na
,p/es NUCLEAR REGULATORY C0PMI55!0N 10 CFR Part 50 and Part 70 EMERGENCY PLANNING 1
AGF.NCY: U.S. Nuclear Regulatory Coomission ACTION: Final Rule
.d SL90%RY: On September 19, 1979 and on December 19, 1979, the Commission published for public comment (44 FR 54308 and 44 FR 75167) proposed amend-ments to its emergency planning regulations for production and utilization facilities. Extensive coments were received, all of which were evaluated and considered in developing the final rule. The coments received and the staff's evaluation is contained in NUREG-0684 In addition, the NRC conducted four Regional Workshops to solicit coments; these comments are available in NUREG/CP-0011 (April 1980)."
The final regulation contains the following elements:
- 1. In order,to continue operations or to receive an operating license an applictnt/ licensee will be required to submit their emergency plans, as well as state and local governmental emergency response plans, to NRC. The NRC will then make a finding as to whether the state of onsite and offsite emergency preparedness provides reasonable assurance M TO that _;; n @r..;. protective seasures can and will be taken in the event of a radiological emergency. The NRC will base its finding
" copies of NUREG documents are available at the Comission's Public Document Washington, D.C. 20555. Copies may be purchased Room, 1717 H Street, from the Government Print NW.,ing Office.
Information on current prices may be obtained by writing the U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Publications Sales Manager, i 3 c ,.,.1,. . . . . n o a
j .
~
en a review of the Federal Emergency Management Agency (FEMA) findings. and determinattens as to whether State and local asargency plans are adequate and capable of being implemented, and en the NRC assessment as to whether the licensee's/ applicant's emergency plans are adequate and capele of being isplemented. 488 858vM M"Ihf f" i 4
* #A n 4', a g A vaie 4 , 4 W a. N M A 4 M84 fO Emergency veed a/s.y,A tidns A4k Nvan r/ shiss"a y*3 d'81 CN j 2. nnip pe extended to Emergency Planning Zones,"
- 3. Detailed emergency plan implementing procedures of licensees / applicants will be mquired to be submitted to NRC for review, and i 4. Requirements in 10 CFR Part 50, Appendix E are clarified and upgraded. i I
- EFFECTIVE DATE
- 75 days after publication ,
NOTE: The Nuclear Regulatory Commission has aubmitted this rule to the ! l Comptroller General for Mview of the reporting requirements in the rule, pursuant to the Federal Reports Act, as amended (44 U.S.C. 3512). The (
, date on which the reporting requirements of the rule become effective l includes a 45-day period, which the statute allows for Comptroller General review (44 U.S.C. 3512(c)2)).
4 FOR FURTHER INFORMATION CONTACT: Mr. Michael T. Jangochian, Office of l
; Standarda Development, U.S. Nuclear Regulatory Commission, Washington. l D.C. 20535 (Telephone: 301-443-5966).
i SUPPLENENTARYINFORMATI_0N: In June 1979, ths Nuclear Regulatory Commission , began a formal reconsideration of the role of emergency planning in ensuring i I the continued protection of the public health and safety in. areas around nuclear power facilities. The Commission began this reconsideration in recognition of the need for more effective emergency planning and in 2 Enclosure "8" w w, e .-- .q,,,,--n,.,,--- v g--n-wr ~-.yr-,,n
' h, "
g g 003**" response g te reports issued by responsible effices'ef government and the NAC's Congressional oversight ccasittees. ' On December 19, 1979, the Nuclear Regulatory Commission pubitshed in the federal Resister (44 FR 75167) proposed amendments to 10 CFR Part 50 and Part 50, Appendix E of its regulations. Publiestion of these final rule changes in the Federal Resister is not only related to the December 19, 1979 proposed rule changes but also incorporates the proposed changas to l l 10 CFR Parts 50 and 70 (44 FR 54308) published on September 19, 1979. Interested persons were invited to submit wricten comments / suggestions in connection with the proposed amendments within 60 days after publica-tion in the Federal Recister. During this consent period (in January 1980) i the Commission conducted four regional workshops with ;p,,, .'.;;e pte , and local officials, utility representatives, and the public to discuss the feasibility of the various portions of the proposed amendments, their , 4 impact, and the procedures proposed for complying with their provisions. ! The NRC used the informat toi, from these workshops along with the public comment letters to develop the final rule (more than 170 connent letters and the points made in two petitions for rulemaking were i adman con-W i-
$ 4
> sider
=). ,
After evaluating all pu11ic comment letters received and all the hbO information obtaitted during the workshops as well as additional reports ShekJewr% 4mmitpin anc(% i such as the3NRC Special Inquiry Group Report, the Cosmission has decided , to publish the final rule changes described below. Description of Final Rule Chances
,, The Commission has decided to adopt a version of the proposed rules SimilAA/s .
hammmes alternative A described in sections 50.47 and 50.54 in the Federal 3 Enclosure "B" w ~ , - -r-w. ----w ~ - -e,.,.,w,,.-,-,-ww,-ww,.-rw-,-var m - w w n- .w--w e e,ww ,---en,-w w--ee.w--,-~~swo--. ---e -e ome
[, ' t Benialar Helige dated December 19, 1979, (44 FR 75157), as modified in light of comments. *;n
".., _tx ;ff;.O;., .;'" ;:x't 0;t -
[ Fen O .r.. t. S; : *: ::.^. "'n ;; 0;t O n.:-U
...+. .,'
2 ... a. 4.-a- .... evles ae;6. -.- 7 n;- *u --c7 > ;;;;>;;,, consistent with the approach outlined by FEMA and NRC in a Memorandus of Understanding (45 FR 5847, January 24,1980).No new operating license will be granted unless the NRC can make a favorable ' E finding that the. integration of onsite and offsite emergency planning provides reasonable assurance that protective measures can and will be taken in the event of a radiological emergency. In the case ! of an operating reactor, if it is determined that there a such deft- ;
.ciencies that a favorable NRC finding is not warranted and 4 he oeficiencies' arenotcorrectedwithin4monthsofthatdetermination,theCommissfon !
apprdinoosW \ wil'i determine,whether the reactor should be shut dcwn or whether some ' s other enforcement - Z.10 4, action is appropriate,' pursuant to procedures provided '
- for in 10 CFR 2.2000 In any case where the Commission believes that the public health, safety, or interest so requires, the plant will be required t 4
]
to shut down immediately (10 CFR 2.202(f), see 5 U.S.C. 558(c)). The standards that the NRC will use in making its determinations
'under these rules are set forth in the final regulation. Wherever possible, these standards may blend with other emergency planning procedures for non-nuclear emergencies presently in axistence.
The standards are a restatementI I of basic NRC and now , joint NRC-FEMA guidance to licensees and to State and ' local governments. See NUREG-0654; FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in { Support of Nuclear Power Plants for Interim Use and Comment " (January 1980). 4 Enclosure "B"
o i E
'In deciding whether to permit reactor operation in the face of some s
deficiencies, the Ceamission will examine eeong other factors whether tho' a = d :. defigiencies are significant for the reactor in qiestion, whether A ' ' ntre.m
- 6x ned ue compensatory actions have been or will be taken promptly, end whether,t other compel. ling reasons exist '
for rasetor operation. N W O M/0N4" b Specifically, the regulation contains the following three sa,for changes ,
- from past practices:
- 1. In order to continue operations or to receive an operating license anapplicant/liceriseew'illbe.requiredtosubmit emergency plans, as well as State and local governmental emergency response plans, to NRC. The NRC will then make a finting as to whether the state of onsite and offsite emergency preparedness provides reason . ,
able assurance that arr ; -te protective measures can and will be L taken in the event of a radiological emergency. The NRC will base its finding on a review of the FEMA findings and determinations as to whether State and local emergency plans are adequate and capable of being implemented, and on the MAC assessment as to whether the app 1icant's/ licensee's emergency plans are adequate and capable of \ Tn ay NRC Lerbst% proce) h A fem A f d o' w ill c.m n W L being implemented.A S pecifically: AM.6v+m 6le. :lv m pre,,. a. xMe y o de p . .y . An Operating License will not be issued unless a favorable NRC overall finding can be made.
- b. After April 1,1981, an operating plant may be required to shut down if it is determined that there are deficiencies such that a favorable NRC finding cannot be made or is no longer warranted 5 Enclosure "B"
_and the C ficiencies'are not corrected within 4 months of that
, determination.
2. Emergency planning censiderations must be extended to " Emergency Planning Zones," and 3.. Detailed emergency planning implementing procedures of both ifcensees and applicants for operating licenses must be submitted to NRC for review. In addition, the Commission is revising 10 CFR Part 50, Appendix E,
" Emergency Plans for Production and Utilization Facilities,"~in order to clarify, expand, and upgrade.the Commission's emergency planning regula-
.tions. Sections of Appendix E that are expanded include:
, 1. ' Specification of." Emergency Action Levels" (Sections IV.B and C)
- 2. Dissemination to the public of basic ehergency planning information (Section IV.0)
- 3. Provisions for the State and local governmental authorities to have
~ a capability for rapid notification of the public during a serious reactc j emergency, with a design objective of completing the initial notifica-tion within 15 minutes after notification by the licensee (Sec-tion IV.0)
- 4. A-licensee onsite technical support center and a licensee near site emergency operations facility (Section IV.E)
- 5. Provisions for redundant communications systems (Section IV.E)
L 6. Requirement for specialized training (Section IV.F)
- 7. Provisions for up-to-date plan maintenance (Section IV.G) u
[ Applicants for a construction permit would be required to submit more infomation as required in the new Section. II of Appendix E. [ 6 Enclosure "B" l
i t- , , s Rationale for the Final Rules - \ - L The Comeission's final rules are basad on l'- :-di ; ,',CzA
.abset the significance of adequate emergency planning and preparedness to ensure acequate protection of the public health and safety. It is clear, based on the various official reports described in the proposed '
rules (44 FR at 75169) and the public record compiled in this rulemaking,
.. that onsite and offsite energency preparedness au well as proper siting and engineered design features are needed to protect the health and s
saf.ety of the pubile. As the Commission reacted to ths accident at Three Mile Island, it became clear that the protection provided by siting and engineered design features must be bolstered by the ability to take pro-tactive measures during the course of an accident. The accident also- . L showed clearly that onsite conditions and actions, even if they do not cause significant offsite radiological consequences, will affect the way- '
~
the various State'and local entities react to pr6tect the public from any
. ; dangers associated with the accident $85899 In order to discharge effectively its statutory responsibilities, the Commission " : ,, L.:Ln: ,
w must i. :.. r..P.k.. t; know that proper means and procedures will be in place to assess the course of an accident and its potential severity, that NRC and other appropriate authorities and the public will ade As et., be notified promptly, and that rr r:,f t r. protective actions in response to actual or anticipated conditions can and will be taken. 1 l The Commission's organic statutes provide it with a unique degree of discretion in the execution of agency functions. Siecel v. g,C,, C 400 F.2d 778, 783 (D.C. Cir.1968), see Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 771 & n.47 (3d Cir. 1979). "Both the Atomic Energy Act of 1954 and the Energy Reoiganization Act of 1974 confer broad regulatory 1 . l L 7- Enclosure "B" -
l1 ' c fc.ations en the Commission and specifically authorize it te promulgate rules and regulations it deues necessary to fulfill .its responsibilities under the Acts, 42 U.S.C. I 2201(p)." Public Service Co. of New Nampshire
- v. jg, 582 F.2d 77, 82 (1st Cir.), get. denied, 439 U.S.1946 (1978).
L 13342U.S.C.133(a). As the Supreme Court r+ated almost 20 years agog the Atomic Energy Act " clearly contemplates that the Commission shs11 by [ .. regulation set forth what the pubite safety requirements are as a pre- \ requisite to the issuance of any license or permit under the Act," Power Reactor Develoosent Co. v. International Union of Electrical Radio Machine < i Workers, 367 U.S. 396, 404 (1961). Finally,itisalsoclearthat"Congressi when it enacted [42 U.S.C. 2236)..., must have envisioned that licensing standards, especially in the areas of health and safety regulation, would vary over time as more was learned about the hazards of generating nuclear , energy. ' Insofar as those standards became more demanding, Congress surely would have wanted the new standards, if the Commission deemed it appropri to apply to those nuclear facilities already licensed," Ft.-Pierce Util-l ities Authority v. United States, 606 F.2d 986, 996 (D.C. Cir. 1979). l c In response to and guided by the various reports and public comments, I as well as its own determination on the significance of emergency prepared-ness, the Comeission has therefore concluded that adequate emergency preparedness is an essential aspect in the protection of the public health L and safety. The Commission recognizes there'is a possibility that the l operation of some reactors may be affected by this rule through inac-tion of State and incal governments or an inability to comply with these L rules. The Commission believes that the potential restriction of plant operation by State and local officials is not significantly different in l 1 8 Enclosure "B"
^
, .. i I
, l j
kind or effect from the agWeeans alrea$ available under existing law to prohibit reactor operation, such as zoning and land-use laws, certiff- 1 cation of public convenience-and necessity, State financial and rate l .<,, ..., 1
. . considerations (10 CFR 50.33(f)) and Federal environmental laws. The q 1
Co'amission notes, however, that such considerations generally relate to i a one-time decision on siting j t! ^. ^ . . ... ^ ;,.t;. f i r: c ' * - ',- ' , , whereas this rule requires a periodic renewa7 of State and local commit- i I L 1 monts to emergency preparedness. . "t ........y.. . . h;.b f M r c Art.:. :: ' ; ' :d l e i with this le in actual practice, however, the Commission :: ..R!.; A t.e
.-.: :.: T not shutMag down a facility until all factors have L
been thoroughly examined. The Commission believes, based on the record created by the public workshops, that State and local officials as part-nors in this undertaking will endeavor to provide fully for public pro-taction. Thu. , ap e. . -.... : J.. . . ' "... . ." W, r i . v an 6 i.i. w r. , .ud .i! ; "A
)
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.u n e em. + -, 9 ..i; < +u n e e 4 3 p -q.~ . 4., _re ;;;g thi.;r th: U"th- A d d .; -e..4 -11 rs ;; -- fr--d.ssi;uieter, ;;6+en t
to.-peavents.. ., ..; '2 r:; 5 1 's ?- *h r cert; h trin -i...--ls
- .e.s;.. i....;^. b.- ::.: A :.. s .. E , # , T.: ^ 6 G.;. ;..;,
L
. sea f=':d " " 1 " (' * ' .
Summary of Comments on Ma.ior Issues The Commission appreciates the extensive public comments on this important rule. In addition to the record of the workshops, the NRC has received over 170 comment letters on the proposed rule changes. The fol1owing major issues have been raised in the comments received. e o e
. - , , , - . , , - .. ..n.... . - . _ . . , , - - . . - . - , . . . . . . - . - . . - , . - - - - - .
L. i Issue At- NRC REVIEW AND CONCURRENCE ~IN STATE AMD' LOCAL *A
- 1. FEMAisbestsuited'toassesstho'adequacyofstateandIocalradii logical emergency planning and preparedness and report any adverse findings to NRC for assessment of the licensing consequences of tiu
. findings.
- 2. The proposed rule fails to provide objective. standards for
. . NRC concurrence, reconcurrence, and withdrawal of concurrence.
- 3. In the absence of additional statutory authority, the proposed rule frustrates Congressional intent to preempt state and local government veto power over nuclear power plant operation.
t
- 4. Procedures and standards for adjudication of emergency planning disputes are not adequately specified in the proposed rule.
Issue B:
- EMERGENCY PLANNING ZONES (EPZs)
- 1. Regulatory basis for imposition of the Emergency Planning Zone concept should be expressly stated in the regulation.
- 2. Provisions regarding the plume exposure pathway EPZ.should u t provide a maximum planning distance of ten miles.
, 3. References to NUREG-0396 should be deleted to avoid disputes over its meaning in licensing proceedings. ' Issue C: ALTERNATIVES A & 8 (In 50.47 & 50.54)
- 1. Neither alternative is necessary because the Commission has ,
sufficient authority to order a plant shut down for safety reasons, and should be prepared to exercise that authority only
- on a case-by-case basis and when a particular situation warrants such action.
4 l. i 10 Enclosure "8"
g , , ; ; e ., ,
, to No case has been sede by the Commission.for the need for auto-antic shutdown, as would be required in Alternative B, and certainly no other NRC regulations exist that would require
{ such action based on a concept.as amorphous as " concurrence ! in State and local emergency plans." 4 L 3. The idea that the Commission might grant an exemption to the [' rules that would pemit continued operation (under Alternative 'B) has little significance, primarily because 10 CFR Part 50.12(a). , already permits the granting of exemptions.
- 4. The process and procedures for obtaining such exemptions are not defined, nor is there any policy indication that would indicate
, the Commission's disposition to grant such exemptions.
5.. The Commission, in developing this aspect of the proposed rule, must consider its own history. There was time when regulation
~
was char'acterized by the leaders of the agency by simple and very appropriate expressions. The process was to be " effective and efficient." The application of regulatory authority was to be " firm, but fair." Regardless of the outcome of the
" concurrence" issue, the Commission must appreciate that Alter-native 8 is not fair. It is not effective regulation.
Issue D: PUBLIC EDUCATION. Only information required to inform the public about what to do in the event of a radiological emergency need be disseminated. There 11 Enclosure "B"
' ~
)
c.. - should be flexibility, in av particular cash, as to who will be
. ultimately responsible for disseminating such infomation.
Issue E: LEGAL AUTHORITY. s
- 1. A-few commenters felt that NRC had no authority to promulgata a rule such as the one proposed.
2. OthercommentswereofthenaturethatNRChasstatutoryauthor1Q only inside the limits of the plant site. ! 3. SomecommenterssuggestedthatNRCandFEMAshouldseekaddition4} g legislation to compel State and local' governments to have emerge plans, if that is what is necessary.
)
Issue F: SCHEDULE FOR IMPLEMENTATION. l The schedule for implementing the proposed rule was considered to be unrealistic and in some cases in conflict with various State schedul ,, alrea@ in existence. A sampling of the comments on the implementation schedule as unrealistic follows:
- 1. The 180 days in the schedule is an insufficient amount of time to accomplish tasks of this magnitude; the Federal government does.not work with such speed. States are bureaucracies also; there is no' reason to assume they can work faster. It took 1'
l !. years of working with States to get the plans that are presently ! concurred in. It is just insufficient time for new concurrences and review. Also, to get a job done within that time frame means a hurried job, rather than an acceptable and meaningful plan. . l l L . l: 12 E;. closure "B"
- . . . . :.u.. -. .-. - . . ....-
;j .
' t. The time provided is.inedequate for States to acquire the haresare needed. States must go out for competitive bids ,just' as the Federal government does. Between processing and accept-ing a bid and actual delivery ,of equipment, it may take a' year to get the hardware. Also, the State budgets years ahead. If a State or local government needs more money, it may have to n .go to the l'gislature.
e This is a time-consuming public process that may not fit the Federal schedule.
- 3. NRC and FEMA could not review 70 or more plans and provide concurrence by January 1, 1981. The Federal government moves slowly. Commenters did not think that-NRC and FEMA can review all the plans within the time frame scheduled. If the Federal government.cannot meet its schedule, why or how should the '
e States?
,4. Funding could not be appropriated by State and local governments'
} before the deadline. It was suggested that the Cosnission use l H. Rept. #96-413 (" Emergency Planning U.S. Nuclear Power Plants: Nuclear Regulatory Commission Oversight") for the time frame rather than that in the proposed rule or use a sliding-scale time frame since States are at various stages of cumpleting their emergency plans. q Issue G: IMPACT OF PROPOSED RULE.
- 1. ' The proposed regulations were considered by some commenters as unfair to utilities because it was felt they place the utilit'es in the political and financial role that FEMA should be assuming. NRC is seen as in effect giving Stata and local 13 Enclosure "B" i
7.y .-._.7.__.-___________ f (* '
, govcensents vote cver the operation of nuclear plants. 'It t .was questioned whether this was an intent of the rule. In r .
addition, it was felt that utilities, their customers, and their shareholders should not be penalized by a shutdown (with '
.r~ a resulting financial burden) because of alleged deficiencies or lack of cooperation by State and local officials. '
[ 2. It was suggested that NRC's Office of Inspection and Enforcement (. conduct the reviews of the State and local governmental emergency a
- response plans in order.to ensure prompt, effective, and consis-tent implementation of the proposed regulations. ',
- 3. One commenter noted that the public should be made aware.of the '
issue of intermediate and'long-term impacts of plant shutdowns.- - t Specifically, people should be informed of the possibility of !
" brownouts," cost increases to the consumer due' to securing
, alternative energy sources, and the health and safety factors ! associated with those alternative sources. ' c .
- Issue H
- PUBLIC NOTIFICATION,.
[ 1. Ultimate ress,onsibility for public notification of a radiologi-j, cal emergency sust be placed on State and local government.
- 2. The " fifteen sinute" public notification rule is without scientific justification, fatis to differentiate between areas close in and further away from the site, and ignores the techni-cal difficulties associated with such a requirement.
1 I i Issue I: EMERGENCY ACTION LEVELS. S [ Applicants, in cooperation with State and local governmental author-
- ities, should be permitted the necessary flaxibility to develop 4
14 Enclosure "B" I:
l l ll l t . ( f emergency action level criteria appropritw for tho' facility in question,subjecttoNRCapproval. Inflexible hAC emergency action.
' level standards are not necessary.
Issus J: EgNyg.
- 1. Mandatory provision for training local . service personnel and '
local news media persons is outside of NRC's jurisdiction and
, is not necessary to protect the' public health and safety,
- 2. Public participation in drills or critiques thereof should not be required.
- 3. The provision regarding formal critiques should be clarified to mean the licensee is responsible for developing and conducting such critiques, 4.
p Definitive performance criteria for evaluation of drills should be developed by the licensee', subject to NRC approval. Issue K: IMPLDIENTING PROCEDURES. NRC review of implementing' procedures is only necessary to apprise the NRC staff of the details of the plans for use by the NRC during the course of an actual emergency. Issue L: FUNDING.
- 1. Nuclear facilities, sithough located in one governmental tax jurisdiction and taxed by that jurisdiction, affect other jurisdictions that must bear immediate and long-term planning costs without having access to taxes from the facility.
- 2. As the radius of planning requirements becomes greater, few facilities are the concern of a single county. The planning 1
15 Enclosure "B"
~ _ _ _ _ _ - . - _ - - _ . - _ . - - _ - . - - - _ _ . - _ _ . _ _ - - . . _ - _
radius often encompasses county lines, $t' ate lines, and in-some instances, international boundaries.
- 3. As new regulations are generated to oversee the nuclear industry and old ones expanded, there is an immediate need to address fixed nuclear facility planning at.all levels of government, beginning at the' lowest and going to the highest. All levels t
of government need access to immediate additional funds to upgrade their response capability.
- 4. . It is well understood that the consumer ultiniately must pay -
the price for planning, agardless of the level in government ' at which costs are incurred. It becomes a matter of how the consumer will be taxed, who will administer the tax receipts and what is the most effective manner in which to address the problem.
- 5. The basis for effective offsite response capabilities is a L
sound emergoney p eparedness program. Federal support (funding and technichl assistcnce) for the development of State and local offsite capabilities should be incorporated into FEMA's L preparedness program for all emergencies. L Issue M: GENERAL. The States support Federal oversignt and guidance in the development .
- of offsite response capabilities. However, many States feel the confusion and uncertainty in planning requirements following Three l nile Island is not a proper environment in which to develop effective capabilities nor does it serve the best interests of their citizens.
[. l The development of effective nuclear facility incident response 16 Enclosure "B" L
? ,
capabilities will require close coordinatirn and cooperation between responsible Federal agencies, State government, and the nuclear i
' industry. An orderly and comprehensive approach to this effort makes !
it necessary that onsite responsibilities be clearly. associated with t - NRC and the nuclear industry while deferring offsite-responsibilities ! to State government with appropriate FEMA oversight and assistance. In addition to these comments, two petitions for rulemaking were H filed in reference to the proposed rule. These were treated as public i comments rather than petitions and were considered in developing the final 4 rule. 1 i The Commission has placed the planning objectives frow NUREG-0654; I [ t l FEMA-REP-1 " Criteria for Preparation and Evaluation of Radiological Emer- ' _ gency Response Plans and Preparedness in Support of. Nuclear Power Pir.nts for Interim Use and Ccament" January 1980, into the final regulations. l- Comments received concerning NUREG-0654 were available in developing the final regulation. The Commission notes that the planning objectives in NUREG-C654 were largely drawn from NUREG-75/111, " Guide and Checklist for Development and Evaluation of State and Local Government Radiological Emernency Respense Plans in Support of Fixed Nuclear Facilities" (December ,1,! 1974) and Supplement 1 thereto dated March 15, 1977, which have been in a n use for some time. The approximately 60 public comment letters received on NUREG-0654 were not critical of the proposed planning objectives. The Ccamission also notes that at the May 1, 1980 ACRS meeting, the Atomic Industrial Forum representative encouraged the use of the planning objectives from 17 Enclosure "B" .
NUREG-0554 in the final regulations in ceder to Ptduce ambiguity and - provide specificity to the final regulation. - h Based on the above, the Commission has decided to modify the proposed rule changes'in the areas discussed in paragraphs I through X below.
. I. FEMA /NRC Relationshio In issuing this rule, NRC recognizes the significant responsibil-
'itiesfassigned to FEMA, by Executive Order 12148 on July 15, 1979, to coordinate the emergency planning functions of executive agencies. In ,
l view of FEMA's new role, NRC agreed on September 11, 1979, that FEMA should henceforth chair the Federal Interagency Central Coordinating Committee for Radiological Emergency Response Planning and Preparedness (FICCC). OnDecember7,1979,thePresidentissue'dadirectiveassigningI FEMA lead responsibility for offsite emergency preparedr.ess around nuclear { facilities. The NRC and FEMA'immediately initiated negotiations for a Memorandum of Understanding (MOU) that lays out the agencies' roles and -
, provides for a' smooth transfer of responsibilities. It is recognized
! that the MOU, which became effective January 14, L980, supersedes some i aspects of previous agreements. Specifically, the MOU identifies FEMA responsibilities with respect to emergency preparedness as they relate f to NRC as the following:
- 1. To make findings and determinations as to whether State and local emergency plans are adequate.
- 2. To verify that State and local emergency plans are capable of being implemented (e.g. , adequacy and maintenance of procedures, training, resources, staffing levels and qualification, and souipment).
L 3. To assume responsibility for emergency preparedness training of State I and local officials. [ . h l 18 Enclosure "B"
L ,
'4. To develop and issue an updated series <.f interogency assignments - -
that delineate respective agency capabilities and responsibilities and define precedures for coordination and direction for emergency planning and response. Specifically, the NRC responsibilities for emergency preparedness identified in the MOU are:
.- -1. To assess licensee emergency plans for adequacy.
. 2. To verify that licensee emergency plans are adequately implemented (e.g., adequacy and maintenance of. procedures, training, resources, staffing levels and qualifications, and equipment).
- 3. To review the FEMA findings and determinations on the adequacy and capability of implementation of State and local plans.
- 4. To make decisions with regard to the overall state of emergency preparedness (i.e., integration of the licensee's emergency prepared-ness as determined by the NRC and of the State / local governments as determined by FEMA and reviewed by NRC) and issuance of operating licenses or shutdown of operating reactors. -
In addition, FEMA has prepared a proposed rule regarding " Review and Approval of State Radio. logical Emergency Plans and Preparedness." (44 FR 42342 dated June 24,1980) According to the proposed FEMA rule, FEMA will approve State and local emergency plans and preparedness, where appropriate, based upon its findings and determinations with respect to the adequacy of State and local plans and the capabilities of State and local governments to effectively implement these plans and preparedness measures. These findings and determinations will be provided to the NRC for use in its licensing process 1 19 Enclosure "B"
.c k II. Emeregncy Plannieur Zons_Cencept The Commission notes that the regulatory basis for adoption of the Emorgency Planning Zone (EPZ) concept is the Commission's decision to t
have a conservative emergency planning policy in addition to the.conser-
. vatism inherent in the defense-in-depth ' philosophy. This policy was endorsed by the Commission in a policy statement published on October 23, ,, 1979 (44 FR 61123). At that time the Commission stated that two Emergency Planning Zones (EPZs) should be established around each light water nuclear l power plant. The EPZ for airborne exposure has a radius of about 10 miles; i the EPZ'for contaminated food and water has a radius of about 50 miles.
Predetermined protective action plans are needed for the EPIs. theexact size and shape of each EPZ will be decided by emergency planning officials after they consider the~ specific conditions at each site. These distances ; are considered large enough to provide a response base which would support activity outside the planning zone should this ever be needed. l
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l l l 20 Enclosure "B" l
_ _ _ .7 4.
. i j,.,, >
, ,,,,112. Position en Plannine Basis for San 11' Licht Water Reactors and.,,..
Ft. St. Vrain . j The Consission has concluded that the operators of small light water cooled power reactors (less than 250 Wt) and the Ft. St. Vrain gas-cooled reactor any establish seal lanning zones which will be evaluated on a ! case-by~ case basis. This conclusion is based on the lower potential hazard < from these facilities (lower radionuclide inventory and longer times to release significant amounts of activity in many scenarios). Guidadee regarding the radionuclides to be considered in platining is set forth in NUREG-0396; EPA 520/1-78-016 " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plcr.ts," December 1978.
- y. . . . . -
IV. Rationale for Alternatives Chosen ! 1 In.a few areas of the proposed rule, the Commission identified two i alternatives that it was considering. Many pubite comments were received .l 1 on these alternatives; based on due consideration of all consents received as well as the discussions presented during the workshops, the bission - has determined which of each pair of alternatives to retain in the final rule. In Sections 50.47 and 50.54(s) and (t), the alternatives dealt with conditioning the issuance of an operating license or continued operation of a nuclear power plant on the existance of State and local government n: emergency response plans concurred in by NRC." The basic difference between alternatives A and 8 in these sections tes that under alternative A, the proposed rule would require a determination by NRC on issuing a license "See Section V for a discussion concerning " concurrence." 21 Enclesure "B"
e , . 4
.. . , . ce pomitting continued ~eparetten of plants in these cases where relevant-State and local emergency response plans had not received NRC concurrence.
Denial of a Ifeense or shutdown of a reactor would not follow automatica11g in every case. Under alternative 8, shutdown o'f the reactor would be
, required avtamatically if the aporepriate State and local emergency responc plans had not received NRC concurrence within the prescribed time periods unless an exemption is granted. *
^ *t ; . . .^.; ..... : d:::t' ;.. , i - i s s i on 1 ;.. , . .;;i ;;
gl
$ tic
^ f:: "
'd---
" :-d *^. ;; r f 't;, ,,;,,,,,,;;, m ,,,, ,;
n.. s.......
- b. " ;r-"u-- - : _"' r ' i t, ;. ": . E ; .. :;... This Commission choice is consistent with most of the comments received from State and local i
governments and is consistent with the provisions 'of Section 109 of the NRC FY 80 Authorization;. Bill. Alternative B was seen by some of the commenters as potentially causing unnecessarily harsh economic and social
~
consequences to State and loca1 governments, utilities and the public. State and local governments which are,directly involved in implementing planning objectives of the rule strongly favor alternative A since it provides for a cooperative effort with State and lo' cal governments to reflect their concerns and desires in these rules. This choice is respon-sive to that effort. In addition the industr M 4*
' A ** A 4 i m n w a ,44 Q T4.y en ;;;@.;__; ' .t
";- th!: :?t ....:. ...
In Appendix E, Sections II.C and III, alternative A would require an applicant / licensee to outline "...corrnetive seasures to prevent damage to onsite and offsite property," as well as protective sensures for the public. Alternative B addresses only protective measures for the public health and safety. The Commission has chosen alternative B because public health and safety should take clear precedence over actions to protect 22 Enclosure "B"
4 V( o property. haasures to protect property can be taken'en an ad hoc basis o - as resources become available after an accident. j
'In Appendix E, under Training, alternative A would provide for a n
F , joint licensee, Federal, State and local government exercise every 3 years, whereas alternative 9 would provide.for these exercises to be performed
.every 5 years at each sita. The Commission has chosen alternative 8 because the Ceanission is satisfied that the. provision that these exercises be performed every 5 years for each site will allow for an adequate level of preparedness among Federal emergency response agencies. In addition, under then regulations, each licensee is required to exercise annually with local governmental authorities. Furtherzere, Federal emergency response agencies may have difficulty supporting exercises every 3 years g orf all of the nuclear facilities that would be requised to comply with theseruleihanges.
V. Definition of Plan Approval Process The term " Concurrence" has been deleted from the preposed regulations and replaced with refereoce to the actual procedure and standards that NRC and FEMA have agreed upon and are implementing. According to the agreed upon procedure, FEMA will make a finding and determination as to the adequacy of State and local government emergency response plans. The NRC will determine the adequacy of the licensee emergency response plans. After these two detarminations have been made, NRC will acke a finding in the licensing process as to the overall and integratea state of preparedness. It was pointed out to the Commission at the workshops and in public
, comment letters that the term " concurrence" was confusing and ambiguous.
.\'
23 Enclosure "B" '
L .
' lso, A there was a great C:a1 ef cisunderstanding trith the use of the tore E '
because, in the past, the obtaining.of NAC " concurrence" in State emer-
, , gency response plans was voluntary on behalf of the States and not a l regulatory requirement in the licensing process. Previously.too, " concur-rence" was statewide rather than site specific.
VI. Fifteen Minute Notification The requirement for the capability for notification of the public
.within 15 minutes after the State / local authorities have been notified by
, the Itcensee has been expanded and clarified.
It also has been removed as a footnote and placed in the body of Appendix E. The implementation schedule for this requirement has been extended to July 1, 1981.. This extensionoftimehasbeenadoptedbegemostStateandlocalgovern-L , ments identified to the Commission the difficulty in procuring hardware, contracting for installation, and developing procedures for operating the l y systems used to implement this requirement. I The Commission is aware that various commenters, largely from the L . industry, have objected to the nature' of the 15-minute notification J requirement, indicating that it may be both arbitrary and unworkable. .
.Among the possible alternatives to this requirement are a longer notification time, a notification time that varies with distance from l
l the facility, or no specified time. In determining what that criterion should be, a line must be drawn somewhere,and the Commission believes that providing as such time as practicable for the taking of protective 1
- action is in the interest of public health and safety. The Commission recognizes that this requirement say present a significant financial impact, and that the technical basis for this requirement is not without L 24 Enclosure "B" l
y : dispute. Merover,: there may never be an accident requiring' using tho' =- ~ .' L 15-minute notification capability. However, the essential rationale - ' h behind emergency l planning is to provide additional assurance fer the l public protection even during such an unexpected event. The 15-minute notification capability requirement is wholly consistent with that rationale. The Commission recognizes that no single accident scenario should l 1 form the basis for choice of notification capability requirements for
, offsite authorities and for the public. Emergency plans must be developed that wi11 have the flexibility to ensure response to a wide spectrum of 1
l- accidents. This wide spectrum of potential accidents also reflects on 1 the appropriate use of the offsite notification capability. The use of
- p. - aggis notification capability will range.4 rom immedidgeestification of l the public (within 15 minutes)-to listen to predesignated radio and television stations, to the more likely events where there is substantial time available for the State and local governmental officials to make a I
judgment whether or not to activate the public notification system. Any acc~ident involving severe fuel degradation or cere seit which I results in significant inventories of fission products in thg containment 1 C I would warrant immediate publ.ic notification and z e,f vr}s);tatw
= .., based on the 1
Of \ L particular circumstances, Jer appropriate protective action because of ' the potential for }WA48- m of the containment building. In addition, the warning time available for the public to take action may be substantially 1' less than the total time between the original initiating event and the time at which significant radioactive releases take place. Specification of particular times as design objectives for notification of offsite author-ities and the public are a means of ensuring that a system will be in ' 1 25 Enclosure "8"
. . = _ _ _ _ . _ _ _ . _ _ . . _ _ _ _ _ . _ . _ _ _ . _ _ _ . _ _ _ _ . . _ _ _ . . ~ . _ _ _._.
_ _. . _ . _ _ _ . _ . _ _ _ _ _ _ . . _ _ . ~ . . _ _ _ _ . _ . _ L ._ place with the capability to notify the public to seek further information by listening to predesignated radio or television stations. The commissie recognizes that not every individual would necessarily be reached by the actual operation of such a system under all conditions of system use.
, However, the Commission believes that provision of a general alerting l ,
system will significantly improve the capability for taking protective i actions in the' event of an emergency. The reduction of notification ' l times from the several hours required for street-by-street notification to minutes will significantly increase the options available as protec-tive actions under severe accident conditions. These actions could include ! staying indoors in the case of a release that has already occurred or a ,
. precautionary evacuation in the case of a potential release thought to be e a few hours away. Accidents that do not result in core melt may also
- .cause relatively quick releases for which protective actions, at least
- for the public.in_the immediate plant vicinity, are' desirable. '
l
'Some comments received on the proposed rule advocated the use of a staged notification system with quick notification required only near the plant. TheCommissihnbelievesthatthecapabilityforquicknotifica-;
tion within the entire plume exposure emergency planning zone should be provided but recognizes that some planners may wish to have the eption of selectively actuating part of the system durir,g an actual response. Planners should carefully consider the ispact of the added decisions that ' offsite authorities would need to make and the desirability of establish- , ing an official consunication link to all residents in the plume exposure i
, emergency planning zone when determining whether to plan for a staged notification capability.
26 Enclosure "B"
VII. Effective Date of Rules..and Other Guidance '_ _ . . . . , _ . . Prior to the publication of these amendments, two guidance documents were published for public comment and interia use. These are NUREG-0610 "Oraft Emergency Action t.evel Guidelines for Nuclear Power Plants"
. (September 1979) and NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness ,,' in Support of Nuclear Power Plants for Interim Use and Comment" (January 1980). It is expected that versions of these documents revised on the basis of public comments received will be issued to assist in defining acceptable levels of preparedness to meet this final regulation. In the interim these documents should continue to be used as. guidance.
VIII. Hearina_ Procedures Used in Implementation of These Reculation e Should the NRC believe that the overall state of emergency prepared-ness at and around a licensed facility is such that there is some question whether a facility should be permitted to continue to operate, the Com-mission may issue an order to the licensee to show cause, pursuant to 10 CFR 2.202, why the plant should not be shut down. This issue may arise, for example, if NRC finds a significant deficiency in a licensee plan or in the overall state of emergency preparedness. If the NRC decides to issue an order to show cau.se, it will provide the licensee the opportunity to demonstrate to the Commission's satisfaction, % forexample,thJa the alleged' deficiencies,are not significant for the( m s.pten
*4=- r- o
' ' - JA
- - - yiu-1.+ 4 m w e, e,1, 4 k ,
in compensating seense r he' ; -- have bee mtaken P& question,4+"' h%
- v. p . - . _..- ... ..... . . ..ty, crathat thope epe other compelling a5.,t 4<v oa., d ev reasons".t: pd t --'*-d* operation. Finally, pursuant to 10 CFR 2.202(f),
the Commission may, in appropriate circumstances, make the order immediately l
\
27 Enclosure "B" !
.g . .
)
, effective, which could result in immediate plant shutdown subject to a .
) later hearing. IX. Fundina In view of the requirements in these rule changes regarding the actioI l
- to be taken in the event State and local government planning and prepared-ness are or become inadequate, a utility any have an incentive, based on its own self interest as well as its responsibility to provide power, to- i assist in providing sanpower, items of equipment, or other resourt:es that
.the State and local governments any need but are thamrelves unable to provide.-
\ The Commission believes that in view o'f the President's Statementi l of December 7,1979, giving FEMA the lead role in offsite planning and .l preparedness, the question of whether the NRC should or could require a utility to contribute to the expenses incurred by State and local govern- , I ments in upgrading and maintaining their emergency planning and prepared-ness (and if it is to be required, the mechanics for doing so) is beyond l e the scope of the present rule change. It should be noted, however, that any direct funding of State or local governmen emergency prepared-j ness purposts by the Federal government would come.through FEMA. 1 X. Exercises - o i L on an annual basis, all commercial nuclear power facilities will l [ be required by NRC to exercise their plans; these exercises should n involve exercising the appropriate local government plans in support of
- these facilities. The State may choor,e to limit its participation in l
i i
- 28 Enclosur
- "B"
- , ; ;.. t
~
s~~ ~a ,
~\
[ .a
"' Pursuant to the Atomic Energy Act of 1954, as amended, the Energy .
Reorganization Act of 1974, as amended, and Section 552 and 553 of ' l .- o Title 5 of the United States Code, notice is hereby given that the ' 1, l following amendments to. Title 10, Chapter I, code of Federal Regulations, , y ', Parts 50 and 70, are published as e document subject to codification. L i [. E. l l.
- 1. .
l f t f
.j"4 P
i 30 - Enclosure "B"
- _ ~ . . - - - -- -- .
[ ; . .. ... -
) .
4. amen:ises at facilities other than the facility (site) chosen for the - - annual exercise (s) of the State plan. . Each State and appropriate local government shall annually conduct 4 l an azercise jointly with a commercial nuclear power facility. However, L ' States with more than one facility (site) shall schedule exercises such-l tha's each individual facility (site) is exercised in conjunction with the Stata and appropriate local government plans not.less than once every , c three years for sites with the plume exposure pathway EPZ partially or
. wholly within the State, and not less than once every 'five years for i sitas with the ingestion exposure pathway EPZ partially or wholly within j l
the State. The State shall choose, on a rotational basis, the site (s) l at which the required annual exercise (s) is to be conducted; priority - l shall be given to new facilities seeking an operating license from NRC, which have not had an exercise involving the State plan at that facility site. - I l , The Commission has determined under the criteria in 10 CFR Part 51 ! that an environmental impact statement for the amendments to 10 CFR Part , 50 and Appendix E thereof is not required. This determination is based on " Environmental Assessment for Final Changes to 10 CFR Part 50 and Appendix E of 10 CFR Part 50, Ems rgency Planning Requirements for Nuclear Power Plants" (NUREG-0685, June 1980). Comments on the " Draft Negative Declaration; Finding of No Significant Impact" (45 FR 3913, January 21, 1980) were considered in the preparation of NUREG-0685. 29 Enclosure "B"
,ee - - - - + , --- ----e---.---.---,-,---,,,..--=,.--,a - + - - - - - . - = - ,
I : - - PART 50 - DO ESTIC LICENSING OF PRODUCTION
. Ale UTILIZATION FACILITIE5 1.' ' Paragraph (g) of Section 50.33 is revised to read as follows: '
f 50.33 Contents of applications; general information. m a a a
- (g) If the application is for an operating license for a nuclear power reactor, the applicant shall submit radiological emergency response plans of State and local governmental entities in the United States that are wholly or partially within the plume exposure pathway Emergency Planning '
Zone (EPZ)t, as well as the plans of State governments wholly or partially within the ingestion pathwey EPZ.8 Generally, the plume exposure pathway EPZ for nuclear power reactors shall consist of an area about 10 miles - (16 Km) in radius and the ingestion pathway EPZ shall consist of an area about 50 miles (80 Km) in radius. The exact size and configuration of the EPZs surrounding a particular nuclear power reactor shall be deter-mined in relation to the local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundaries. The size of the EPZ's also may be determined on a case-by-case basis for gas-cooled reactors and for reactors with an authorized power level less than 250 MW thermal. The plans for the ingestion pathway shall focus on
' Emergency" Planning Zones (EPZs) are discussed in NUREG 0396, EPA 520/
'1-78-016 Plarcing Basis for the Development of State and Local Govern-ment Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," December 1978.
2If the State and local emergency response plans have been previously pro-vided to the NRC for inclusion in the facility docket, the applicant need only provide the appropriate reference to meet this requirement. 31 Enclosure "B"
. such enMs as are appropriate to'pmtect the feed ingestion pathwayo- s. '
- 2. A new section 50.47 is added.
$ 50.47 Esoreency slans.
L (a) No operating license for a nuclear pt. s mector will be issued unless a finding is ande by NRC that the state of onsite and offsite eser-gency prepp M ness provides M asonable assurance that tactivo esasures can and wi'l be taken in the event of a radiological emergency. The NRC will base its finding on a review c,f tha Federal Emergency - Management' Agency (FEMA) findings and determinations as to whether State-
, and local emergency plans a n adequate and capable of being i g lemented, l
and on the NRC assessment as to whether the applicant's onsite emergency > plansareadequateandcapableofbeingimplementedg F ,
- (b) The onsite and offsite emergency response plans for nuclear !
i power reactors must meet the following standards:2 . ; 1 l ? h IlkC, b b%j A /'E # 4 f/*MinQ kidh S NJH0 ptttoNpmToY % i ys.%,Gsv1Cf'sMt.; epdepa cy. l i i i
- r
*These sttnaaats FEMA-REP-1 titledare addMssed
" Criteria by specific for Preparation criteria and in NUREG-0654;io-Evaluation of Rad logical Emergency Response Plans and Preparedne.ts in Support of Nuclear ;
Power Plants for Interia Use and Comment," Janua.y L*80. i l l : 32 Enr.losure "B" c ,
i ! < 1. Primary responsibilities for emergency response by the noclear i i facility Itcensee and i$ State and local organizations within the Emer- ' i l gency planning Zones have been assigned, the eoergency responsibilities l
- j. of the various sgperting organisations have been specifically established l'
and each principal response organization has staff to mspond and to sug- [ ment its initial response on a continuous basis, t f l 2, On-shiftfacilitylicenseeresponsibilitiesforemergencyresponsf are unambiguously defined, adequate staffing to provide initial facility l accident response in key functional areas is maintained a all times, , timely augmentation of response capabilities is available, and the inter-1 faces among various onsite response activities v.d offsite support and response activities are specified, i
- 3. Arrangements for requesting and effectively using assistance !
resourcu, have been sede, arrangements to accommodate State and local f staff at the licensee's near-site Emergency Operations Facility have [ t been made, and other organizations capable of augmenting the planned
- response have been identified. I 1
- 4. A standard emergency classification and action level scheme, ;
the bases of which include facility system and effluent parameters, is l in use by the nuclear facility Itcensee, and State and local response l plans call for reliance on information provided by facility licensees for determinations of minimum initial offsite response measures. t
- 5. Procedures have been~ established for notification, by the licensee, of State and local response organizations and for notification of emergency personnel by all response organizations; the content of initial [
and followup messages to response organizations and the public has been established; and means to provide early notification and clear instruction 33 Enclosure "B"
tl \ i
'n .. - 4te the.pepulace wfCin the plume exposure pathuey Energency planning'Zene have been established. .
- 6. Prwisions exist for prompt communications among principal response organizations to emergency personnel and to the public.
- 7. Information is ends available to the public en a periodic basis
\ on how they will be notified and what their initial actions should be
- in an emergency (e.g., listening to a local broadcast station and remain- ;
ing indoors), the principal points of contact with the news media for 1 i dissemination of information during an emergency (including the physical -l location or locations) are established in advance, ar,d procedures for { coordinated dissemination of inforsation to the public are established. I L 8. Adequate emergency facilities and equipment to support the ! i energency response are provided and maintained.
- 9. Adequate atthods, systems, and equipment for assessing and monits ing actual or potential offsite consequences of a radiological emergency condition are in use.
- 10. A range of protective actions have been developed for the plume exposure pathway EPZ for emergencyw " or'kers and the public. Guidelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place, and p'rotective actions for the ingestion exposure pathway EPZ appropriate to the locale have been developed.
- 11. Means for controlling radiological uposures, in an emergency, are established for emergency worke s. The means for controlling radio-logical exposures shall include exposure guidelines consistent with EPA
, Enargency Worker and Lifesaving Activity Protective Action Guides.
34 Enclosure "B"
- . .. , j i ; 1 12.. Arrangements see a6de for medical services for contaminated i- l
/
injuredindividuals. ?
- 13. General plans for recovery and reentry are developed. i
- 14. Periodic exercises are (will be) conducted to evalusta, major {
portions of emergency response capabilities, periodic drills are (will ; be) conducted to develop and maintain key skills, and deficiencies identi- i I l fied as a result of exercises or drills are (will be) corrected. t l ,
- 15. Radiological emergency nsponse training is provided to those t who say be called on to assist in an energency.
-l
- 15. . Responsibilities for plan development and review and for ;
1 distribution of emergency plans are established, and planners are pro-l { perly trained. F ; (c) Failure to meet the standards set forth in paragraph (b) of ! this subsection say usult in the Commission declining to issue an i ? , Operating 1.icense; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies ir, l the plans are not significant for the plant in question, that W8 ' compensating actior.s have been er will be taken promptly, or that there are other compelling nasons to permit plant operation. Generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 Ka) in radius and the ingestion i pathway EPZ shall consist of an ama about 50 miles (80 Ka) in radius, r The exact size and configuration of the EPZs surrounding a particular L nuclear power reactor shall be determined in relation to local emergency ! L response needs and capabilities as they an affected by such condi- , tions as demography, topography, land characteristics, access routes, l and jurisdictional boundaries. The size of the EPIs also any be detarsined on a case-by-case basis for gas-cooled nuclear reactors and 35 Enclosun "B"
I for reacters with an authorized power level less than *250 W themslo i s. i The plans for the ingsstien pathway shall focus en such actions as are
- appropriate to protect the food ingestion pathway. .
i l 3. Section 50.54 is amended by adding five new paragraph., l
. (q), (r), (s) (t), and (u).
I 50.54 Conditions of licenses. , a . a :n a a : (q) A licensee authorized to possess and/or operate a nuclear power .l h reactor shall follow and maintain in effect emergency plans which meet the I l l standards in 50.47(b) and the requirements in Appendix E of this Part. 1 A licensee authorized to possess and/or operate a research reactor or a i
- fuel facility shall follow and maintain in effect emergency plans which aset the requirements .in Appendix E of this Pert. The nuclear power reactoc licensee may make changes to these plans without Coneission approval. only if such changes do not decrease the effectiveness of the plans and the l Plans, as changed, continue to meet the standards of 50.47(b) and the requirements of Appendix E of this Part. The research reacter licensee
- and/or the fuel facility licensee may make changes to these plans without i
' Commission approval only if such changes do not decrease the effectiveness I of the plans and the plans, as changed, continue ta meet the requirements I of Appendix E of this Part. Proposed changes that decrease the effective- ,
1 1 ness of the approved emergency pla'ns shall not be intelemented without
' application to and approval by the Commission. The licensee shall furnish 3 copies of each proposed change for approval; if a change is made without prior approval, 3 copies shall be submitted within 30 days after the change l is made or proposed to the Director of the appropriate NRC regional office 36 Enclosure "B"
. . ; l
.. l
. . s specified in Appendix 0, Part te of this part, with 10 capies to the
- Dimeter of Nuclear Reacter Regulatten, or, if appropriate, the Director
]
of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory l Commission,' Washington, D.C.'20555. l 1 (r) Each Itcensee who is authorized to possess and/or operate a ; i research or test reactor facility with an authorized power level greater than er equal to 500 W thermal, under a license of the type specified j in 3 50.21(c), shall submit emergency plans complying with 10 CFR Part 50, I Appendix E, to the Director of Nuclear Reactor Regulation for approval - t within one year from the effective date of this rule. Each licensee who l is authorized to possess and/or operate a research reactor facility with an authorized power level less than 500 W thermal, under a license of j the type specified in I 50.21(c), shall submit emergency plans complying with 10 CFR Part 50, Appendix E, to the Director of Nuclear Reactor Regulation for approval within two years from the effective date of this amendment.
. l (s) Each licensee who is authorized to possess and/or operate a l
)
1 l nuclear power reactor shall submit to NRC within 60 days of the effective l data of this amendment the radiological emerger.cy response plans of State ( and local governmental entities in the United States that are wholly or partially within a plume exposure pathway EPZ, as well as the plans of { 5 tate governments wholly or partially within an ingestion pathway EPZ.188 : Ten (10) copies of the above plans shall be forwarded to the Director of 1
' Emerge Planning Zones (EPZs) are discussed in NUREG-0396; EPA 520/1-78-01' "Plann Basis for the Development of Stata and Local Government Radiolo Emergency Response Plans in Support of Light Water Nuclear Power Plan Decem6sr 1978.
8If the state and local emergency response plans have been previously pro-
- vided for inclusion in the facility docket to the NRC for applicant need
! only provide the appropriate reference to meet this requirement.
- 1
. 37 Enclosure "B" L_._.._._.. _ . _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ _
o e- .Nyclear Reacter Regulation with 3 copies to the Birecterref thelappropriate NRC regional office. Generally, the plume espesure pathway EPZ for nuclear power reacters shall consist of an area about 10 miles (15 Ka) in radius and the ingestion pathway EPZ shall consist of an area about 50 miles. (go Nm) in radius. The exact size and configuration of the EPIs for a particular nuclear power reactor shall be detemined in relation to local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and. jurisdictional boundaries. The size of the EPZs also say be deter-eined on a case-by-case' basis for gas-cooled nuclear reactors and for reactors with an authorized power level less than 250 W thersal. The ! plans for the ingestion pathway EPZ shall focus on such actions as are l appropriate to protect the food ingestion pathway. For operating power reactors, the licensee, State and local emergsney response plans shall be laplemented by April 1,1981, except , as provided in Section IV,0.3 of Appendix E of this Part. If[after April 1, 1981, the NRC finds that the state of energency preparedness ! does not provide reasonable assurance that appropriate protective spessures
~
ean and will be taken in the event of a radiological emergency an e L deficiencies are not corrected within four months of that finding, the j Commission will determine whether the reactor shall be shut down until . l such deficiencies are remedied or whether other enforcement action is appropriate. In determining whether a shutdown or other enforcement I action is appropriate, the Commission shall take into account, among L other factors, whether the licensee can demonstrate to the Commission's satisfaction that the deficiencies inlan theare p#not etw significant for l the plant in question, or that " %' 7 compensating actions have been . 1 38 Enclosure "B"
f* 4 l 4.. :. - - . cr will be taken promptly, or that there are other cespelling reasons:"" v i l for continued operation. i The NRC will base its finding en a review of the FENA findings and ; I deterisinations as to whether State and local emergency plans are adequate and capable of being faplemented, and en the NRC assessment as to whether ; i the licensee's emergency plans are adequate and capable of being imple-l 1 ) mented.- Nothing in this paragraph shall be construed as limiting the ' authority of the Commission to take action under any other regulation or authority of the Cassission er at arty time other than that specified in this paragraph. (t) A nuclear power reactor licensee shall provide for the develop-ment, revision, implementation, and maintenance of its emergency prepared- I ness progras. To this end, the licensee shall provide for a review of
- 1. its emergency preparedness program at least every .4 months by persons
) who have no direct responsibility for implementation of the emergency
- preparedness program. The review shall include an evaluation for adequacy !
- of interfaces with State and local governments and of licensee drills, I
exercises, capabilities, and' procedures. The results of the review, along with recoassendations for improvements, shall be documented, reported to the licer.see's corporate and plant management, and retained for a period of five years. The part of the review involving the evaluation for adequacy of interface with State and local governments shall be . available to the appropriate State and local governments. (u) Within 60 days after the effective date of this amendment, each nuclear power reactor licensee shall submit to the NRC plans for coping , l with emergencies that meet standards.in Section 50.47(b) and the require-monts of Appendix E of this Part. 1 39 Enclosure "B" 1
L . ,
- n. r. . ' * < 4, 10.CPR Part C3. M x E, is amended as fe11ews: **
. t . ::
- a a a a
(" I l
. . i i
1 i 1
.s l
l i t
>+ ;
e
?
t i
. k e
l 1 ed I
'4 k
i 40 Enclosure "8' [
1 ,
, APPDSIX E==DERBENCY PLAlti!NB AND PREPAREDNESS FOR -
t-- I PRODUCTION Afe UTILIZATION FACILITIE51 I. Introduction Each applicant for a construction permit is required by 8 50.34(a) to include in the preliminary safety analysis report a discussion of preliminary, plans for coping with emergencies. Each applicant for'an operating license is required by I 50.34(b) to include tn the final safety. analysis report plans for coping with emergencies. ! This appendix establishes minimum requirements for emergency plan for use in attaining an ecceptable state of emergency preparedness. These j plans shall be described generally in the preliminary safety analysis l
- report and submitted as a part of the final safety analysis report.
j The potential radiological hazards to the public associated with the operation of research and test reactors and fuel facilities licensed under 10 CFR Part 50 and 70 involve considerations different than those associated ) t i
'MRG staff has developed two regulatory guides: 2.6, "Emergen:y Planning for Research Reactors," and 3.42, " Emergency Planning in Fuel Cycle i
NRC/ FEMA report, NUREG-0654; FEMA-REP-1, "Critaria fcr , Evaluation of Radiological Emergency Response' Plans hnd Preparedness in i support of Nuclear Power Plants - For Interim Use and Comment," January 1980,' to provide guidance in developing plans for coping with emergencies. Copies of these documents are available at the Commission's Public Document Room, ! 1717 N Street, NW., Washington, D.C. 20555. Copies of these documents may i- be purchased from the Government Printing Office. Information on current i prices any be obtained b Washington, D.C. 20555, Attention:y writing the U.S. Nuclear Publications Regulatory Commission Sales Manager. - 1 L 41 Enclosure "B" . __ , __ _,__--.,-e-- -e---+-re- - - - - " - * - * * ' * " * ' " ' - " ' " * " " ~ ~ ' *
, 4
- - ,. with auslaar power reacters. Conse pently, the size of Emergency Planning Zoness (EPZs) for fact 11 ties other than power reacters and the degree to which compliance with the requirements ef this section and Sections II, y !!!, IV and V is necessary will be determined on a case-by-case basis.s l , !!. . The Preliminary Safety Analysis Report '
The Preliminary Safety Analysis Report shall contain sufficient p inforestien ta ensure the compatibility of proposed emergency plans for both onsite areas and the EPZs, with facility design features, cite layoute and site location with respect to such considerations as access routes, * ' surroundingpopulationdistributions,landuse,andlocaljurisdictional i boundaries for the EPIs as in the case of nuclear power reactors as well l i
; asthemeansbywhichthestandardsof50.47(b)willbemet. l 1
i l l l i l I l. l
't.PIs for power reactors are discussed in NUREG-0396; EPA 520/1-78-016 >
l u "Planni Basis for the Development of State and Local Government Radio-logical rgency Response Plans in support of Light Water Nuclear Power 1 Plants," December 1978. The size of the EPIs for a nuclear power plant shall be determined in relation to local ese response needs and capabilities as they are affected by such itions as demography, L topography, land characteristics access routes, and jurisdictional boundaries. The size of the EPIs,aise may be. determined on a case-by-case basis for gas cooled nuclear reactors and for reactors with ari nuthorized' I power level less than 250 W thereal. Generally,theplumeexposurepath-j way EPZ for nuclear power plants with an authorized power level creater 1 than 250 W thermal shall consist of an area about 10 miles (16 Re) in l radius and the ingestion 1 miles (80 Km) in radius. pathway EPZ shall consist of an area about 50 sRegulatory Guide 2.6 will be used as guidance for the acceptability of research and test reactor emergency response plans. 42 Enclosure "8"
\
As a Cinious, the following items shall be described? - A. Ormite and offsite organizations for coping with emergencies l and the means for notification, in the everrt of an emergency, of persons assigned to the energency organizations.
- 8. Centacts and arrangements made and documented with local, $ tate, L 1 r
and Federal governmental agencies with responsibility for coping with i !' emergencies, including identification of the principal agencies. C. protective esasures to be tr. ken within the site boundary and . I l within each EPZ to protect health and safety in thn event of an accident; 'l , procedures by which these asasures are to be carried out (e.g. , in the l case of an evacuation, who authorizes the evacuation, how the pubite is to l be notified and instructed, how the evacuation is to be carried out); and , the expected response of offsite agencies in the event of an emergency; I
- D. I Features of the facility to be provided for onsite emergency '
- first aid and decontamination and for emergency transportation of onsite individuals to offsite treatment facilities.
l E. Provisions to be made for emergency treatment at offsite facil-ities of individuals injured as a result of Ifeensed activities. ' F. Provisions for a training program for employees of the licensee, including those who are assigned specific authority and responsibility in the event of'an emergency, and for other persons who are not employees l e 1 of the licensee but whose assistance any be needed in the event of a radio- i j logici energency, i 1 . 1 i 43 Enclosure "B" l'
e , 8. A preliminary analysis that proj'esta the. time and soans to be - - employed in the notification of State and local governments and the public in the event of an emergency. A nuclear power plant applicant shall perfers a pre 11ainary analysis of the tb required to evacuate varieus sectors and distances within the ,1ume exposure pathway EPZ for trat.sient and personant populations, noting major impediments to the eveeuation er taking of protective actions. H. A preliminary analysis reflecting the need to include facilities, systems, and methods for identifying the degree of seriousness and potential scope'of radio, logical consequences of emergency situations within and out ' side the site boundary, including capabilities for dose projection using real-t h astoorological information and for dispatch of radiological . monitoring teams within the EPZ's; and a preliminary analysis reflecting b the role of the onsite technical support center and of the near-site emergency operations facility in assessing inforsation', recoseending protective action, and disseminating information to the public. III. The Final Safety Analysis Report The Final Safety Analysis Report shall contain the plans for coping with emergencies. The plans shall be an expression of the overall con-capt of operation; they shall describe the essential elements of advance planning that have been considered and the provisions that have been made to cope with emergency situations. The plans shall incorporate information about the emergency responsa roles of supporting organizations L {
\
l i 44 Enclosure "B" !
and offsite agencies. That information s, hall be sufficient te proviCr assurance of coordination among the supporting groups and with'the licensee. The plans submitted must include a description of the elements set p out in section IV for the Emergency Planning Zones (EPZs)8 to an extent t sufficient to demonstrate that the plans provide reasonable assurance that appropriate measures can and will be taken in the event of an , emergency. IV. Content of Emergency Plans The applicant's emergency plans shall contain, but not necessarily , be limited to, information needed to demonstrate compliance with the ! l elements set forth below, i.e. organizatien for coping with radiation ' emergencies, assessment action, activation of emergency organization, ( notification procedures, emergency facilities and equipment, training, ; maintaining emergency preparedness, and recovery. In addition, the j - amergtney response plans subeitted by an applicant for a nuclear power [ reactor operating , license shall contain information needed to demonstrate 4 compliance with the standards described in . ction 50.47(b),4 and they P will be evaluated against those stanc'ards. The nuclear power reactor operating license applicant shall also provide an analysis of the time I rehuired to _ evacuate and for taking other protective actions for various L sectors and distances within the plume exposure pathway EPZ for transient and permanent populations. 4These objectives are addressed by specific criteria in NUREG-0654; . i FEMA-REP-1 titled "Criterie for Preparation and Evaluation of Radiological Emergency Rasponse Plans and Preparedness in Support of Nuclear Power Plants for Interim Use and Comment," January 1980. - 1 45 Enclosure "B"
A, OtrnANIZAT10N . The organization for coping with radiological emergencies shall be described, including definition of authorities, responsibilities and i duties of individuals assigned to the licensee's emergency organization i and the means for notification of such individuals in the event of an emergency. Specifical)y, the following shall be included:
- 1. A description of the normal plant operating organization.
- 2. A description of the onsita emergency response organization with a detailed discussion of: '
i ,
- s. Authorities, responsibilities, and duties of the indi- :
, vfdual(s) who will take charge during an emergency
- b. Plant staff emergency assignments '
l c. Authorities, responsibilities, and duties of an onsite ! emergency coordinator who shall be in charge of the exchange ; of information with offsite authorities responsibl,e for ;
, coordinating and implamenting offsite emergency measures !
l 3. A description, by position and function to be performed, of the i \ v: , licensee's headquarters personnel who will be sent to the plant , site to augment the onsite emergency organization.
- 4. Identification, by position and function to be perfomed, of '
persons within the licensee organization who will be responsible '
, for making offsite dose projections, and a description of how these projections will be made and the results transmitted to State and local authorities, NRC, and other appr priate
. governmental entities.
I l 1 46 Enclosure ",R"
---,-,e -m-ee- -, n ___en _.,_e - ,..__,._w._..---,_____.--___.-e--
__,_.__,e._.._,__w___ _ _ - , ,,-_s...a.__e . - - , __. - -..--1,,w- - _n-,--e_ .w_._na,e.+
s3 Identifiestion, by positten and functfen te he peMweed; ef:
- other esplayees of the Ifeensee with special quelfffsettens fee osping with emergency conditions that og arise. Other !
persons with special gus11fications, such as consultants, who l l
- are not employees of the Ifeensee and who esy be calf ad een for assistance for emergencies shall aise be identiffed. The I special qualifications of these persons shall be described. j
- 6. A description of the local offsite services *,e be provided in
' l 1
support of the Ifconsee's emergency organization. i. I
- 7. Identification of, and assistance expected free, appropriate State,!
I j local, and Federal agencies with responsibilities for coping - { with emergencies. -
- 8. Identification of the Stata and/or local official's responsible for planning for, ordering and controlling appropriate protec- '
- tive actions, including evacuations when necessary.
- 8. A55E59etT ACTIONS The means to be used for determining the segnitude of and for con-t tinually assessing the tapact of the release of radioactive materials i shall be described, including emergency action levels that are to be ,
used as critaria for detemining the need for notification and participa-tion of local and State agencies, the Cassission, and other Federal agencies, and the emergency action levels that are to be used for deter-mining when and what type of protective measures should be considered within and outside the site boundary to protect health and safety. The emergency action levels shall be based on in plant conditions and instrv-eentation in addit;on to onsite and offsita monitoring. m ue emergency 47 Enclosure 't*
- e action levels shall be discussed and agreed en by'the applicent and Stata and local governmental'authorittes and approved by NAC They shall aise be reviewed with the State and local governmental authorities on ar. annui basis. .
C. ACTIVATION OF EE RGENCY ORGANIZATION The entire spectrum of emergency conditions that involve the alertic or activation of progressively larger segments of the total emergency organization shall be described. The communication steps to be taken tei alert or activate emergency personnel under e'ach class .of emergency sha10 be described. Emergency action levels (based not only on onsite and l; offsite radiation monitoring information but also on readings from a numb of sensors that indicate a potential esorgency, such as the pressure in , I containment and the response of the Emergency Core Cooling Systes) for ' notification of offsite agencies shall be described. The existence, but ! not the details, of a message authentication schese shall be noted for ; such agencies. The emergency classes defined shall include: (1)notifid l tion of~ unusual events, (2) alert, (3) site area emergency, and (4) gened i emergency. These classes are further discussed in NUREG 0654; TEMA-REP-1
' i O. NOTIFICATION PROCEDURES j
- 1. Administrative and physical means for notifying locah., State, and Federal officials and agencies and agressents reached with these f 1
officials and agencies for the prompt notification of the public and for i pelic evacuation or other protective seasures, should they become neces-sary, shall be described. This description shall include identification l of the appropriate officials, by titlegand agency, of the State and local . government agencies within the 1 43 Enclosure "8"
,' {.
l T I em 1 n A4 I 2. Provistens shell be described for yearly
- dissemination to the- i Npelic within the plume exposure pathway EP7 ' '"--'--+^
O I popuSe44g, of basic emergency planning information, s w h as the methods
- g. and times required for pubite notification and the protective actions :
[
]g planned if an accident occurs, general information as to the nature j U and effects of radiation, and a listing of local broadcast stations that >
} o*x wpwillbeusedfordisseminationofinformationd y4y 3. A licensee shall have the capability to notify responsible State y and local governmental agencies within 15 minutes after declaring an'eser ,
1 (" -{ $ gency. The Ifeensee shall demonstrata that the State / local officials ,
, have the capability to make a public notification decision promptly en da
% c.C {e. being informed by the licensee of an emergency condition. By July 1, E 1981, the nuclear power reactor licensee shall demonstrate that a&inis-h l trative and physical means have been established for alerting and providing kN prompt instructions to the public within the plume exposure pathway eser-gency planning zone. The design objective shall be to have the capability to essentially cosplete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes. The use of this notification capability will range from immediata notification of the public (within 15 minutes of the time that State and local officials are notified that a situation exists requiring urgent action) to the more likely events where there is substantial time available for the Stata and local governmental officials to make a judgment whether or not to activate the public notification system. Were there is a decision to activata the notification system, the State and local officials will determine whether to activata the entire notification system simultaneously ,
or in a graduated or staged manner. The responsibility for activating 49 Enclosure "B"
- *. 4 such a pubtfs notificotten systes shall femeln wfD the appropriate * * ** 'o governoemt autherftfes. . -
1 e i i i r )1 1 t 1 i t s. L l. I r 5 4 J t r t 50 Enclosure "B"
. . , _,_..v- ., _ .._ - . , ,_ . , , , . _ .. . . , , . . - . . - . _ , - . . . . - - . . _.-_._,,_.......--_...~.....-ry,,,,_-__,,.m.,_m..
~ - - - - . - . - - - - . - - . - - - - - - - - -
" f pT6 E. SERENCY FACILITIES Als Epl!Melf . f IU
, psiens shall be ande and described for emergency facilities and ,{
equipment, including: l L Equipment at the site for personnel monitoring;- l
. 2. Equipment for determining the magnitude of and for continuously i assessing the lepect of the release of radiesetive asterials to the :
i
.., environment; ;
- 3. Facilities and suppl.fes at the site for decontamination of . ...
onsite individuals; -
- 4. Facilities and medical supplies at the site for appropriate -
l emergency first aid treatment;
- 5. Arrangements for the services of physicians and other medical personnel qualified to handle radiation emergencies onsite;
- 6. Arrangements for transportation pf contaminated injured indi- l tWi*Uskeh W viduals from the site to reatment facilities outsfoe the site boundary; '
- 7. Arrangements for treatment of individuale injured in support f
of licensed activities on the site at treatment facilities outside the site boundary; j
- 8. A licensee onsite technical s gport center and a licensee I near-sita emergency operations facility free which effective direction i can be given and effective control can be exercised during an emergency;
- 9. At least one ensite and one offsite communications system; ;
each system shall have a backup power source. L All communication plans shall have arrangements for emergencies, ' including titles and alternates for those in charge at both ends of the ' communication links and the primary and backup seans of communication. - t 51 Enclosure '8" _ . _ . _ , , - _ , . . , - . - . -1
__..__-_._ __..- _ ~ . _ - - - - - - - - - - -- - q ' ,' * , '. ,) m - tenere eensistent with the function cf the governmentat* agency, these "
"j arrangements will include: -
! a. Provision for communications with contiguous Stata/ local I. governments within the plume exposure pathuey emergency planning zone. i such communications shall be tested monthly, i b. Provision for communications with Federal energent,y l l t
- response organizations. Such communications systems shall be tested l
j annually. !
- c. Provision for communications among the nuclear power !
l reactor control room, the ensite technical support contar, and the .l l near-site emergency operations facility; and among the nuclear facility, ! the principal State and local emergency operations centers, and the field I l~ assessment teams. Such communications systems shall be tested annually.
- d. Provisions for consunications by the licensee with NRC j I
Headquarters and the appropriata NRC Agional Office Operations Center from the nuclear power reactor control room, the onsite technical support l center, and the near-site emergency operations facility. Sach communica-tions shall be tested monthly. F. TRAINING The ptogram b provide for (1) the training of employees and exer-cising, by periodic drills, of radiation emergency plans to ensure that employees of the licensee are familiar with their specific emergency response duties and (2) the participation in the training and drills by other persons whose assistance any be needed in the event of a radiation emergency shall be described. This shall include a description of 62 Faclosure "B"
, o
.ng ,-
sposta1fand.foftfat treiptas and portedte retre1alag programs to be'provic to each of the following categories of emergency personnel: j a. Directors and/or enerdinators of the plant emergency ergenizatte l
- b. personnel responsible for accident assessment, including centrol l l
rose shift personnel. i
- c. Redte1egtca1 eenitering tenne,
, d. Fire control teams (fire brigades). ,
- e. Repair and desage control teams. .!
I
- f. First afd and rescue teams. . .. ";
- g. Medical s qpert personnel. j
- h. Licensee's headquarters s@ port personnel.
{
- f. Security personnel.
l In addition, a radiological orientation training program shall be made avai able to local services personnel, e.g. , local Civil Defense, local law enforcement personnel, local news media persons. The plan shall describe provisions for the conduct of esorgency preparedness exercises. Exercises shall test the adequacy of timing and l
~
content of implementing procedures and sethods, test emergency equipment andcommunicationnetworks,testthepublicnotificationsystas,andensureq that emergency organization personnel are familiar with their duties. l Each licensee shell exercise at least ar.nually the emergency plan for 1 each site at which it has one er abre power reactors licensed for operation. Seth full scale and small scale exercises shall be conducted and shall include participation by appropriata state and local governannt agencies as follows: 53 Enclosure "B"
[ ' fa ** * *
. 7
- 1. ,A fu11 scale esercise whid tests 'a's auch of the licensee, . <-
' ~ '
State and ' local emergency plans as is reasonably achievable without een-dotary public participation shall be conducted:
- a. For each site at which one er more power reacters are
, located and licensed for operation, at least once every five years and at a frequency which will enable each State and local government within the plume exposure pathway EpZ to participate in at least one full scale I
exercise per year and which will enable each State within the ingestion l i pathuey to participate in at least one full scale exercise every three - L years.
- b. For each site at which a power reactor is located for .
which the first operating license for that site is issued after the affec-tive date of this amendment, within one year before the issuance of the ; operating license for full power, which will enable each State and local government within the plume exposure EPZ and each State within the t ingestion'p.sthway to participate. '
- 2. The plan shall also describe provisions for involving j Federal emergency response agencies in a full scale emergency prepared-ness axercise for each site at which one or more power reactors are located and licensed for operation at least once every 5 years.
- 3. A small scale exercise which tests the adequacy of consuni- ,
cation Tinks, establishes that response agencies understand the emergency action levels, and tests at least one other component (e.g.', medical or offsite sonttoring) of the offsite emergency response plan for licensee, State and local emergency plans for jurisdications within the plume exposure '
. pathway EPZ shall be conducted at each site at which one or more power 54 Enclosure '8'
3 .: reestors. are laceted and licensed for speration each year a full ses1e : e- l i , esercise is not contacted whic$ involves the State (s) within the plume .
)
espesure patinny Ep1. . L All training, includin0 exercises, shall provide for femal critiques ! in order to identify weak' areas that need corrections. Any weaknesses that are identified shall be currected.
- 8. MINTAINING EERGENCY PREPAREDNESS Provisions to be employed to ensure that the emergency plan, its i 1
implementing procedures, and emergency equipment and supplies are main- - < tained up to data shall be descrit,ed. I H. RECOVERY ! i I Criteria to be used to determine when, following an accident, reentry ' of the facility would be appropriate or when operation could be resumed 1 shall be described, i
. V. DPLEENTING PROCEDURES No less taan 180 days prior to scheduled issuance of an operating license for a nuclear power reactor or a license to possess nuclear material, 3 copies of each of the applicant's detailed implementing procedures for its emergency plan shall be su*,mitted to the Director of the appropriate NRC Regional Office with 10 copies to ths. Director of Nuclear Reactor Regulation or, if appropriate, the Director of Nuclear Material safety and 1
Safeguards. In cases where a decision an en operating license is scheduled I 1 less than one year after the effective date of this rule, such implementa- l ting procedures shall be submitted as soon as practicable but before full i
)
power operation is authorized. Prior to March 1, 1981, licensees who 1 are aut.horized to operate a nuclear power facility shall submit 3 ceptes f 55 Enclosure "B"
.m
_______.-.________,-..,-_m- _,__.__..__....-.,..._r -
.,,m_.,--.w..c---w.
*;; 'V
.; y each of the licensee's emergency plan implementing procedures ta=488 i 0 Headgmestese end to the Director of the appropriate NRC Regional Office with 10 copies to the Director of Nuclear Reactor Regulatten. Three(3) copies each of any changes to maintain these implementing precedures up
, to date shall be sesitted trim 046suegrasesmusend to the same NRC Regional Office with 10 copies to the Director of Nuclear Reactor
, , Regulation 'er if appropriate the Director of Nuclear Material Safety &
Safeguards within 30 asys of such changes. PART 70-00MESTIC LICENSING OF SPECIAL NUCLEAR M TERIAL I l
- 2. Section 70.32 is amended by adding paragraph (1) to read as follows:
5 70.32 Conditions of licenses ! A A R R R i (1) Licensees required to submit emergency plans in accordance with ; 5 70.22(i) shall follow and maintain in effect emergency plans approved , by the Cassission. The licensee may make changes to the appoved plar.s - l without Commission approval only if such chte.;.. .. ...; Mrease the effec- ' tiveness of the plans and the plans, as changed, continue to meet the e requirements of Appendix E, Section IV, 10 CFR Part 50. The licensee shall furnish the Director of Nuclear Meterial Safety and Safeguards, i U. 5. ,thaclear Regulatory cameission, Washington, D. C. 20555, with a : copy to the appropriate NRC Regional Office specified in Appendix 0, L part 20 of this chapter - ; ^-^ r ' ' '; r ":r';^': 27 each ! change within six months after the change is made. Proposed changes l l ( 56 Enclosure 't"
cIdo L'"'""'J that der..wase the effectiveness of the approved emergency' plan shall - not be' implemented without prior application to and prior approval by I the Consission. (Sec. M 1 b., i. and e., Pd. L. 83-703, 68 Stat. MS (42 U.S.C. 2201);
, sec. 201, as amen,ded, Pub. L. 93-438, 88 Stat.1242, Pe. .L. M-73, .
89 Stat. 413 (42 U.S.C. 5341.) Dated at Washington, D.C. this dry of i 1980. , , , , , _ , , _ , _ . For the Nuclear Regulatory Commission. samuel J. cMit Secretary of the Commission A l ( I l
$7 Enel ne s, 888
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\
EXHIBIT 3
- wn W V%W . _
"M: o , l ?! . UllITED STATES COURT OF APPEALS FOR THE DISTRICT OF' COLUMBIA CIRCUIT , p '-
)
UNIOli OF CCNCERNED SCIE!1TISTS, ) j WELLS'EDDLEMAN, and FEDERATED ) : CONSERVATIO!ISTS OF WESTCHESTER ) { COUNTY, ) )
) i Petitioners, ) -
3 V. ) llo. 65-1757 i l
)
UNITED STATES NUCLEAR REGULATORY ) COMMISSION and the UNITED STATES ) , OF AMERICA, ) !
)
Respondents, I
)
) i and ) )
)
NUCLEAR UTILITY BACKFITTING AND ? ; REFORM GROUP, )
)
j Intervenor- ) Respondent. ) l
) !
i BRIEF FOR RESPONDENTS a Pecitioners, the Union of Concerned Scientists, l
- L Wells Eddleman, and Federated Conservationists of Westchester County (hereinafter sometimes "UCS*), have petitioned this Court ;
to review the 11uclear Regulatory Commission's "backfit' rule, 1Q C.F.R. S 50.109 (1986), which became effective on October 21, i 1985. That rule governs the process by which the Commission determines whether to modify already approved plants to achieve a level of safety higher than the " adequate protection" required by ; l l l' 9 h
* ~
P i
- 'the Atomic Energy Act. Petitioners claim thet because the rule
< requires cost-benefit analyses, it .' i contrary to the Atomic w
?nergy Act and that even if the Act p'rmits such analysis, the rule is arbitrary and capricious in what it requires in such analysis. Petitioners also claim that the "backfit" rule runs counter to both'the Atomic Energy Act and the Administrative-Procedure Act by excluding the public from participation ir. the ,
making of certain backfit decisions. s
/
STATEMENT OF THE CASE ' A. Nature Of The Case This case involves a challenge by the Union of Con-cerned Scientists a.- others ("UCS") to the facial validity of t.he Nuclear Regul'atory Commission's ("NRC" or "Co.mmission") final rule on backfitting. 50 Fed. Reg. 38097 (1985) (J.A. 1);
.0 C.F.R. S 50.109 (1986). "Backfitting" in the context of nuclear power regulation refers generally to NRC actions that require modification of the design, equipment, or operating procedures of power reactors already licensed for construction or operation.1 The rule sets out the findings to be made and 1
More precisely, the rule describes backfitting as modifications to systems, structures, components, designs, (Footnote Continued) 2
'6. -
-m . ., , - ,
i ,4 hJ' > f . factors to be conzidered before a backfit can be imposed. The , core of this case is UCS'c assertion that the Commission's backfitting rule violates the Atomic Energy Act ("AEA" or "the i Act") by requiring that economic costs be balanced against { increased protection of t.ealth and safety in deciding whether to order a backfit. ' i.. In establishing the conditions for backfitting, the i rule makes a distinction between two basically different kinds of f backfitc, a point crucial to understanding the rule, but one that j UCS has missed entirely. Generally, the inte f a backfit is to upgrade safety at the facility, but this t can be of two types: (1) corrective changes perceived as necessary to j maintain the level of safety required for licensing ("adequa:e protection"'for the public nealth and safety), or (2) new modi-fications reflecting improved technology or scientific under-standing that make feasible.a plant which is even safer than the level required to be achieved when the plant was licensed (incre-mental safety modifications). These two distinct aims of back-fitting reflect separate but related aspects of the Commission's statutory authority under the Atomic Energy Act of 1954, 42 U.S.C. S 22011. . Contrary to UC3's claims, the rule does not require consideration of costs in backfits found (Footnote Continued) '
. procedures or organization which may be caused by new or modified +
Commission. rules or orders or staff interpretations of Commissicn rules or orders. Thus, this definition includes both cause and effect of backfitting. 10 CFR S 50.109(a)(3). 3
s L
; .. a necessary to maintain the " adequate protection" level of safety which must be met for licensing. Achievement of this level of
, ' protection is generally demonstrated by a licensee's compliance L with the terms of the license and the Commission's rules and orders. Thus the failure of a licensee to meet these binding requirements cannot be excused on grounds of cost, and the L backfit rule neither requires nor permits such an excuse to be considered. It is only when backfitting is proposed to achieve a still higher degree of incremental safety that the rule t i f ' introduces costs as a consideration.
Thus, the real controversy before s Court is whether ; the Commission may consider costs in deciding ther to impose backfits that reduce risks to a level below the sratu orily
, required minimum of " adequate protection" to the pub 1:- 5ealth and safety. 42 U.S.C. 5 223 a. The Commission's determination thet it can consider costs in this context is reasonable and entirely consistent with the Atomic Energy Act.
B. The Commission's Authority To Backfit i. Under Section 182 of the Atomic Energy Act, as a neces-scry condition for licensing a nuclear reactor, the Commission l 5 l l l 4
3, .. must find.that the facility will provide " adequate protection to the health'and safety of the public."2 42 U.S.C. S 2232a. The-
" adequate protection" standard,3 though not precisely defined, has been.recogni:ed through regulatory practice and affirmed by judicial decision as requiring that the risk of serious accidents at a reactor be low, but not that it be reduced to zero. Indeed, it could not be.
But Section 182 does not exhaust the Commission's authority'to impose safety conditions on licensed reactors. Che commission is also separately empowered under section 1611 to issue "such regulations or orders as it may deem necessary" in governing regulated activity "in order to protect health and to minimi:e dancer to life and property." 42 U.S.C. S 2201(1) (emphasis supplied). Accordingly, even when a facility meets the
" adequate protection" standard of Section 182, the Commission may, as "it ... deem (s) necessary," still impose facility backfits in the interent of minimizing risk. It is to such facility backfits, and only to such backfits,.that the cost-benefit balancing imposed by the backfit rule applies.
2 The AEA makes these grants of responsibility and authority to the Atomic Energy Commission, whose regulatory functions were assigned to the Nuclear Regulatory Commission by the Energy Reorgani:ation Act of 1974. 42 U.S.C. S 5801, et sec. 3 The Commission's regulations treat " adequate protection" and "no undue risk" as identical standards. 5
o ? [ The NRC carries our its responsibilities under the AEA through a :sc',eme of licensing and ongoing regulation of- licensed , facilities. In granting licenses and regulating the operation of licensed facilities, the Commission seeks to ensure adequate pro-tection and to minimize danger by requiring compliance with the Commission's regulations and crders. The maintenance.of adequate . L protection and the mininization of danger often has required, and , can be expected to require often again in the future, that an operating plant, or one still under construction, be modified. The Commission may need to rectify newly discovered shortcomings in what had been thought to provide adequate protection, or it may desire to reap the fruits of advances in technology. Such modiff n'iens are now governed oy the comprehensive Commission regulation being challenged here, called the "backfit rule", 10 C.F.R. S 50.109 (1986). The backfit rule, described more fu,11y infra, defines backfitting and requires that before a backfit is imposed the agency shall perform analyses which vary according to the purpose of the backfit. Of particular interent to this litigation, for backfits imposed on plants which already meet their minimum license requirements and provide adequate protection to health and safety, the required analysis must take into consideration the intended benefits of the backfit, its costs, and the manner of its implementation. This required backfit analysis applies only to plant modifications that are intended to ensure a greater level of safety than that required to provide adequate protection of 6
v : . N / V , 1
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' o-
- public health a.nd safety. '.When such'a backfit is considered, the
. , :i regulation' permits its imposition on a licensee only if it would
- bring'about a " substantial increase in overall protection" to t ;
public health and safety, and the costs entailed by the backfit -- including economic costs -- are'" justified" by that j increase. 10oC.F.R. S 50.109(a)(3), c. t* 4 C.- Difficulties Of Regulating A Developing Technolecy l The backfit rule is the result of several years of efforte to deal reasonably with difficulties at the heart of the
- safety regulation of a developing technology. Since the first nuclear power. plants were licensed over twenty-five years ago, the technology of generating electricity by nuclear fission has ;
undergone continuouc development. This continuous development has created two different, regulatory challenges for the Commis-sion. First, it'has sometimes been discovered that an older ,
, design, material, or method of construction or operation which ,
had been thought to provide an adequate level of protection for public healtn and safety did not, in fact, do so. Second, devel-oping technology has permitted increases in the margins of safety above this mandatory minimum level of adequate protection. Whenever developing technology makes it clear that ade-quate protection to the public health and safety is not being met -- the first regulatory challenge that may be created by a developing technology -- the Commission's response has always been clear. In such cases, the Commission requires that the 7 e
C ~ L ina'dequate design, material or method itself, or some related system, be backfitted to compensate for the newly discovered inadequacy.' It has not.been so clear, however, what course the Commission should take when the second regulatory challenge arises -- i.e., when technological advances permit _the possible incremental upgrading of safety at plants which already provide an adequate' level of protection to the public. The development I of nuclear technology has yielded safer, more efficient designs, ( materials, and methods of construction and operation and will continue to do so in the foreseeable future. The industry is, after all, relatively young, more than half the plants now operating ht,ving been, licensed since the establishment of the NRC just twelve years ago. But such is the pace of development that improvements are frequently found to be possible even in facil-i ities as recently licensed as this. The Commission has been faced with deciding to what extent such changes should be imposed on licensees by regulatory authority.
- 4 For example, the fire at the Tennessee Valley Authority's Browns Ferry plant in 1975 revealed that the fire protection measures at nuclear power plants were inadequate. The Commission therefore imposed more stringent fire protection requi:ements on the industry and required a large number of backfits at operating plants. Ultimately the new requirements were embodied in a rule, see 10 C.F.R. Fart 50, Appendix R (1986), and successfully +
defended in this Court. See connecticut Licht and Power v. tinc , 673 F.2d 525 (D.C. Cir. 1982). 8 o
ws: , , < t - At one extreme the Commission might have elected to require that the new developments be part only of plants to be , constructed in the future, but not of any alrecdy approved plant which provides an adequate level of protection to the public. But whenever the new development is a significant improvement over the old, this course of action will be less attractivo the more plants there are in operation. At the other extreme, the Commission could require that every new development be a part of every plant, new or old. But this course of action, too, has certain serious drawbacks which s flow f rom the nature and comple::ity of a nuclear power plant.
.Backfitting such a power plant is almost always more expensive than incorporating the new development into a plant being built.
Moreover, backfitting can increase the complexity of a plant, divert resources from work with a higher priority, and put thoce who perform the actual plant modifications at risk of significant exposure to radiation. The middle course between these extremes is to require that the new developments be incorporated into all future plants, but that they only sometimes be "backfitted' into already approved plants. When this middle course is selected, the , challenge is to find a reasonable way of determining when to incorporate technological advances by way of backfitting plants which already provide an adecuate level of protection. 9
E - F ... j;* I . e D. 'The 1970 Backfittine Rule [L L At the very least, a rational approach to backfitting : such plants will seek to ensure that resources are not fri,ttered
.away on backfits w'tich achieve either small or doubtful gains in safety. When adequate protection is already achj eved, the pur-suit of trivial gains is best passed over in favor of maintenance of the achievement of adequate protection.
This minimum rational approach was contained in the Commission's first attempt at a backfit rule, promulgated in 1970. Like the rule here under attack, the 1970 rule was founded on a recognition that "[t]he rapid changes in technology in the field of atomic energy result in the continual development of new or improved features designed to improve the safety of production ' and utilization facilities." 35 Fed. Reg. 5317 (March 31, 1970) l (J.A. 324). In addrescing this challenge, the 1970 backfit rule l L stated,.in langua'ge virtually verbatim to that in the rule which is challenged here, that "[t]he Commission may ... require the backfitring of a facility if it finds that such action will 1 provide substantial, additional protection which is required for the public health and safety or the common defense and security." 10 C.F.R. S 50.109(a) (1971); see also 10 C.F.R. S 50.109(a)(3) l-(1986). The 1970 rule, like the rule here at issue, did not apply to any backfit necessary to bring a facility into compliance with its license or a Commission rule, re.gulation, 'or order. Comoare 10 C.F.R. S 50.109(b) (1971), with 10 C.F.R. l l S 50.109(a)(4) (1986). L l
- 10 1'
7 h,' ( ., m y ' L .The immidiate impetus for the prenent rule's promulga- " e I tion was that the 1970 backfxt rule had proved unequal to the great' increase in b'ackfitting which has takens place in the last decade, especially after the accident at the Three-l'ile Island nuclear power plant in 1979. The 1970 rule was a simple affair, l P stating only, the substantial increase standard and the exception I
- for backf'its necessary to ecmply with the requirements of a license or commission rules, regulations, or orders.
The 1970 rule assigned no responsibilities to manage-ment and provided no guidance on what was to be considered in determining whether'the proposed backfit would substantially increase protection of health and safety. The 1970 rule was rarely formally invoked, and the Commission therefore found it difficult to.tell whether the rule had in fact been applied when 4 backfit measures had been imposed by the staff. 48 Fed. Reg. 44217, col. 2,(Se,ptember 28, 1983) (Advance tiotice of Proposed Rulemaking) (J.A. 77). Moree.'er, under the 1970 rule, "documen-tation in too many cases (had) ooen non-existent or inadequate to identify and justify the safety and cost consequences of past NRC-imposed backfits." 50 Fed. Reg. 38097, 38104, col. 1 (Sep-
.tember 20, 1985) (Final Rule) (J.A. 1, 8). See also 48 Fed. Reg.
44173, col. 2 (September 28, 1983) (Policy Statement) (J.A. 80). Thus, the Commission, at the height of a period of backfitting, , found itself without a record which would enabic it to determine what many of the backfits which had been imposed had cost, or, most important, what effect they had had on safety. In summing 11 s
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up what hasviewed'the "backfitting problem" to be,-Commissioner Asselstine highlighted shortcomings in past management practices. [T]here have been some instances in which the URC staff has required changes to plants that are costly and of dubious safety value. ... [T]he backfitting process has at timbs been too informal and has lacked the kind of supervision by more senior NRC staff members that is the hallmark of good management. Moreover, there o appears to be some evidence that in,a few instances.
.- a licenseeuhas'been penalized for appealing within the staff management the' imposition of a proposed.backfit.
49 Fed. Reg. 47034, 47039, col. 2 (November 30,-1984) (Preposed Rule) (J.A. 47, 52). E. The Rulemaking Proceedings In the face of these backfitting problems, the Commission embarked on a' lengthy process of reform which included = three periods of public comment, and culminated in the rule-being f challenged here. s On Sept' ember 28, 1983, the Commission published an
" Advance Notice of Proposed Rulemaking". See 48 Fed. Reg. 44217 (J.A. 77). The Advance !!otice invited public comment on draf t ;
backfit rules proposed to the Commission'by, among others, the Commission's Regulatory Reform Task Force, and the Atomic Indus-trial Forum, the trade association of the nuclear power industry. Simultaneously with the Advance Notice of Proposed Rulemaking, the Commission issued a Policy Statement in which it i described measures that had been, or were being, taken to improve the management of backfitting in the interim before a new rulo could be promulgated. See 48 Fed. Reg. 44173 (September 28, 12
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k 1983) (J.A'. 80). The measures included Commission directions to L the FRC staff to guide the staff in managing the process of ; plant-specific backfits for operating reactors. The staff wa: , directed to prepare and submit to the Commission for approval & ! I plan for implementing the Commission's directions. See 46 Fed. 4
. Reg at'44174, col. 1 (J.A. 81). The Commission also directed the staff to consider applying the same management controls to I the backfitting of plants under construction. See iji. at col. 2.
The Commission later approved the staff's plan for implementation of the Commission's directions. ,See 49 Fed. Reg. 47036, cols. 2-3 (J.A. 49). Upon approval, the plan was put into effect and published in the Federal Register for public ccmment.
,49 Fed. Reg. 16900, col. 3 (April 20, 1984) (J.A. 55). The plan l incidded HRC Manual Chapter 0514, on plant specific backfitting.5 The Proposed Ruie was published for comment en November 30, 1984. See 49, Fed. Reg. 47034 (J.A. 47). The final rule was published on September 20, 1985, and became effective on October ,
21, 1965. Se.e 50 Fed. Reg. 38097 (J.A. 1). l l l l S The Manual published in the Federal Register was a precursor of the present Manual Chapter 0514 (the "1985 Manual"), which Petitioners, on March 19, 1986, moved to include in this ; litigation. See J.A. 18. l l 13 1 1
h l^ O F. .The Final Rule The final rule, while retaining the 1970 rule's requirement for a finding of a cubstantial increase ir, protection +
' 'to health and safety, calls in addition for the explicit balanc-ing of costs and benefits:
- - The Commission shall require the backfitting of a facility only when it determines ... that there is a substantial increase in the overall protection of the public health and safety or the common def4.nse and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased pro-l tection.
10 C.F.R. S 50.109(a)(3) (1966).6 The rule makes clear that when meeting adequate l protection of the public health and safety is at stake, there is to be no balancing of costs and benefits. As explicitly stated in the Statement of Considerations accompanying the final rule,
"[t]he considerat, ion and weighing of cocts contemplated by the rule applies to backfits that are intended to result in incremental safety improvements for a plant that already provides an acceptable level of protection." 50 fed. Reg. 38097, 38103, col. 2 (September 20, 1985) (J.A. 1, 7); see also 49 Fed. Reg.
V A 47034, 47036 (November 30, 1984) (proposed rule) (J.A. 47, 49). Accordingly, neither the backfit rule's provisions on the conduct l 6 Although the Coramission was civided in its vote on the L final rule, there was no dissent from the proposition that l ece mic costs can properly be considered in deciding whether to bas t. 1 14 1 ,
w r of the cost-benefit analysis, 10 C.F.R. S 50.109(c), nor the cost-justification standard, 10 C.F.R. S 50.109(a)(3), apply to
- any'backfit imposed in order either to bring a licensee into com-pliance with a license, the cuies aht orders of the commission, or written commitments by the licensee, or to ensure that a facility poses no' undue risk to the public health and safety.
See 10: C.F .R. S 50.109(a)(4) (1986). For those incremental safety increases to which the backfitting' rule applies, a. determination that the costo of a-proposed backfit are' justified by a substantial increase in protection is to be baaed on an analysis the elements of which are re'i out in the' third subsection of the rule. See 10 C.F.R. 5-50.109(c) The analysis requires, "as appropriate", consid-cration of a number of administrative, safety, and cost factors. The analysis must state the specifi; objectites of the proposed backfit, Section 50.109(c)(1), describe in general terms what the licensee or.-applicant must do, Section 50.109(c)(2), consider what priority the backfit should have in relation to other. actions required of the licensee or applicant, Section 50.109(c)(3), state whether the proposed backfit is only an interim measure, Section 50.109(c)(9), and estimate the resources the NRC Vould have to devote to overseeing the backfit and 7The Commission indicated in the Statement of Consideration that a change in what is meant by " undue risk" would be subject to the rule. 50 Fed. Reg. at 38108, col 2. See note 11, infra. 15 l
~e
p .. 7 L e , [' determine.whether those resources are_available. Section 50.109(c)(7). The analysis also must consider whether those who carry out - the backfit, and those who work in the plant after the backfit is complete, will be subject to an increased or decreased radiological exposure, Section 50.109(c)(3), whether the backfit vill increase or decrease the complexity of the
- f. plant, Section 50.109(c)(6), whether the impact of the backfit will vary according to the design or age of the plant, p
Section 50.109(c)(8), and to what extent risk to the public will be increased or decreased, Section 50.109(c)(3). Of specific relevance to this litigation the rule also, of course, requires an estimate of the licensees' costs. Section 50.109(c)(5). This list of considerations is by no.means exhaustive: the rule also requires consideration of "any other information relevant and matorial to the proposed backfit." Section 50.109(c). "This language provides ... ample room for Commission reliance on, among other things, the expertise of its staff to . supplement other analytical tools ... 50 Fed. Reg. 38104, col. 3 (Final Rule) (Chairman Palladino) (J.A. 8). Finally, the rule recognizes, as it must, that backfit-ting decisions are not reducible to mathematical certainty. When performing the analysis just described, and then weighing costs atJainst benefits to determine whether the costs of a proposed backfit are " justified" by a " substantial increase" in d 1 1G
,y #
n protection, the Commission must, of necessity, make qualitative l judgments rather than rely solely on quantitive techniques.O O This langucge first appeared in the proposed rule, see 49 Fed'. Reg. St 47038, c;1s. 1-2 (J.A. 51), and wa*' accompanied by the remark that " judgment in the application of the standard will be essential-in the implementation of the backfit rule." Id. at 47036, col. 1. The Commission's Regulatory Reform Tack Foice had proposed a cost-justification standard which required that a backfit not be imposed unless the increased protection brought about by the backfit " clearly exceeded" the direct and indirect cost of implementing the backfit. See SECY-82-447, Draft Report of the Regulatory Reform Task Force at 5 (J.A. 164). Such language was rejected, though, as inviting excessive quantification of the cost-benefit analysis. See Report of the Ad Hoc' Committee for Review of Nuclear Reactor Licensing Reform Proposals, March 22, 1983 at.6 (J.A. 143). The various versions of the staff Mhnual have also been consistent with the language of the Oost-justificction standard in the rule. The policy which, as noted suora, was established in the'1963 Manual-continues in force in the current version of the Manual. "(QIualitative assessment of the benefits should be made in lieu of a quantitative assessment in cases where (the qualitative assessment) would provide more meaningful insights." 49 Fed. Reg. at 16901, col. 1, subsec. d(2) (1983 Manual)
'(J.A. 56): 1986 Manual at 13 (February 1986) (J.A. 30).
The 1986 Manual, one of the documents which implements the backfit rule, was considered and approved by the Commission after the backfit rule became effective and therefore was not a part of the rulemaking on the backfit rula. Nonetheless, UCS is seeking judicial review of the 1986 Manual, see Petitioners' Motion for Leave to Amend Petition, March 19, 1966, and Petition in UCS, et al., v. MRC, D.C. Cir. No. 86-1219, and it often cites the 1986 Manual in its brief. We have argued that implementing documents such as the 1986 Manual are not reviewable in court. See NRC's Opposition to Petitioners' Motion For Leave to Amend Petition, March 31, 1986. Although we sometimes cite the Manual in order to reply to UCS' arguments, that citation should not be taken to imply that we have abandoned our argument that the Manual is net properly before this court. 17
{ po L p SUM!'ARY 07 ARGUMEt:T The prii.cipal issue raised by UCS in its challenge to the backfit rule is whether the balancing of costs'and ben.: fits required by the rule for certain backfitting decisions is permissible under the Atomic Energy Act. The standarf, of review
' for such a challenge is narrow and deferential. The Commission should be upheld it its interpretation of its organic statute is a permissible one and if its exercises of judgmenc are rational, V whether or not there may be other interpretations and judgments that would also be acceptable and reasonable. The Commission's ,
backfit rule teadily meets this standard of review. , A key point to recognize is that the backfit rule's cost-benefit balancing does not apply to backfits that are necessary to bring a reactor into compliance with the Commission's regulations or otherwise to provide " adequate protection to the' health and safety of the public" as required by Section 182 of the Atomic Energy Act. The rule requires consideration of cost only for backfits that are intended to reduce risk even below the acceptably low level of adequate protection, pursuant to the Commission's separate authority under Section 161: "to minimize danger to life and property." UCS has totally missed this critical point. Its efforts to sho.i that the Commission cannot consider costs in determining whether a backfit should be imposed to achieve adequate protection are directed toward a target that is not an issue in this litigation. The 10 ,
rule specifically exempts such backfits from the cost consideration requirement. t With regard to those backfits which go beyond adequate protectioa, the rule's requirement that costs be considered is eminently reasonable as well as lawful. Because the risk of serious accidents can always be made smaller, though never entirely eliminated, the commission's exercise of its authority to<* minimize danger" has no apparent logical stopping place unless the cost / benefit relationship is taken into account. It is well established that'while the Atomic Energy Act makes safety a paramount consideration, it does not require a perpetual striving touard the unattainable zero risk. Instead, the Act reflects significant concern with practicalities, once an acceptable level of risk has been attained. The rule's treatment of costs is entirely consistent with the letter and spirit of the Act. , UCS also argues that the rule is arbitrary and capri-cious because it excludes as a benefit property damage averted by a proposed backfit, cnd because of its " unqualified reliance" on probabilistic risk analysis ("PRA"). However, the rule does not forbid consideration of averted property damage. To the contrary, although this factor is not specifically identified in the rule, the rule does mandete that all other relevant factors be' considered. If at some future time the rule is applied in a manner which UCS believes to be unlawful, then and only then may UCS challenge such NRC action. Moreover, the rulo nowhere 19 l t I
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]; 1 lir mentions,.let alone places " unqualified reliance" on, PP.As as a tool for carrying out backfitting analyses. Nevertheless, the Commission's. refusal to eschew the appropriate use of such advanced techniques is an encirely reasonable exercise of '
Commission technical expertise. Finally, contrary to UCS's assertions, the rule does not mention, much less restrict, any public participation rights in NRC backfitting decisions. Reasonably enough, the Manual, which implements the rule, does explicitly provide for certain participation by licensees, who are obviously persons sure to be i interested in, and directly affected by, backfitting decisions, But nothing in the rule or the Mancti precludes public input into the decisionmak.ng process where appropriate; and most directly relevant to UCS's arguments, nothing deprives the public of any hearing rights under section 189a of the Atomic Energy Act. In sum,-what the backfit rule actually does is well within the bounds of reason and the authority granted to the Com-mission by the Atomic Energy Act. The rule should be affirmed. 20
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ARGUME!!T
- 7. Judicial Review of The Challenged Rule, Which Defines The Method By which The !;RC Will Impose Technical Modifications on Existing 11uclear Power Plants, Is Both Harrow And Deforential.
Under the Administrative' Procedure Act (the "APA"),
. . the court must decide whether the backfit rule is " arbitrary, capricicus, and abuse of discretion, or otherwise not in accor-dcnce with law; ... (or) in excess of statute.y jurisdiction,
- authority, or limitations, or short of statutory right; ...
5 U.S.C. SS 706(2)(A) and 706(2)(C). In the context of reviewing MRC decisions this standard of review has repeatedly been recognized by this court as narrow and deferential. See e.g., San tuis Obispo !!others for Peace v.
!:nc, Nos. 84-1410, etc. (D.C. Cir., April 25, 1986), slip op, at 24 (en banc); Carstens v. NRC, 742 F.2d 1546, 1551 (D.C. Cir.
1984), cert. den., U.S. , 86 L.Ed.2d G94 (1985), cuoting piecel v. Atomic Enercy Commission, 400 F.2d 778, 763 (D.C. Cir. 1)68). Moreover, tne Supreme Court has recently underscored the deference to be accorded an agency's interpretation of its organic statute. When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise ques-tion at issue, the court does not simply impose its own 21
=
r= . L.' L construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with I respect to the specific i? sue, the question for the . p court is whether the agency's ans.or ir based on ' L a permissible construction of the statute. Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.i l 837, El L.Id. 2d 694, 702-03 (1984) (footnotes omitted). Chus, t in the absence of any unambiguous expression of. congressional intent on the precise question, the Commission can permiscibly e-conclude that the Atomic Energy Act allows consideration of economic costs in deciding whether to backfit pir.nts whi:h-already previde adequate protection to the public health and i safety.9 , , x II. The Commission's Bacxfit Rule Is A Rational And Entirely Lawful Means Of Governing The Process Of Deciding When To Backfit Plants Which Already Provide Adecuate Protection To Health And Safety. L I UCS's lengthy argument against the consideration of ccsts in backfitting, UCS Brief at. 25-52, is devoted to an
'UCS relies on Center for Science in the Public Interest v.
1983), Department of the Treasury, 573 F.Supp. 1168, 1173 (D.D.C. vacated in part, 727 F.2d 1161 (D.C. Cir. 1984), for the proposition that " heightened scrutiny" is due administrative action in a matter where the health of the public is at issue. UCS Brief at 24-25. However, that lower court view of the law cannot be squared with the estab13shed authority cited above. At any rate, regardless of the level of review this court imposes on the Commission's backfitting rule, that rule passes muster under the Atomic Energy Act. Nothing in that Act suggests that it is impermissible for the Commission to require a cost-benefit analysis of incremental safety increases over that level which it is necessary to maintain in order to obtain a license to oper:Le a power plant. 22
L ' l ir rele van.t claim that cost may not se a facter in deciding whether to backfit to maintain adequate protection to the public.
, health and safety. However, ,he t backfit rule requires the Commission-to consider costs only when deciding whether to back-fit a plant which already provides adequate protection. The limited way in which'the backfit rule makes cost a factor is wholly within the secpe of the authority granted the Commission by the Atomic Energy Act.
A. The Backfit Rule Requires Consideration Of Costs Only When A Backfit Is Proposed For A Plant Which Already Provides Adequate Protection. The Statement of Considerations which accompanied the final rule explicitly states when costs are to be considered in decisions on whether to backfit. The costs associated with proposed new safety requirements may be considered by the Commission provided tha't the Atomic Energy Act finding "no undue risk" can te made.... 50 Fed. Reg. 38101 (J.A. 5) (emphases added). Similarly, the Statement also says that (t]hc consideration and weighing of costs contemplated by the rule applies to backfits that are intended to result in incremontal safety improvements for a plant that already provides an acceptable level of protection. Id., at 38103 (J.A. 7) (emphases added). This principle, squarely recognized by the rule's Statement of Considerations, is implemented in cection (a)(4) of the rule, which establishes that the backfit cost-benefit analy-sis described in section (c) of the rule is not required, nor the 23
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rule's cost-justification standard in section (a)(3) applicable, where it is'foundland declared, with appropriate analysis and 1 s documentation, ] (1)-That a modification is'necessary to bring C a facility into compliance with a license or the rules or orders of the Commission, or into conformance with t written commitments by the licensee; or
- - (ii) That an immediately effective regulatory action is necessary to ensure-that the facilgty poses no undue risk to the public health and safety 3
For those modifications which are to ensure that
'the facility poses no undue risk to the public health and safety.end'which are not deemed to require immedi-ately effective" regulatory action, analyses are ,
required; these analyses, however, should not involve
. cost' considerations except only insofar as cost con-tributes to selecting the solution among various acceptable alternatives to ensuring no undue risk to public health and safety.
10 C.F.R. S 50.109(a)(4) (1986). In each of these exception provisions in the rule, meeting the level of adequate protection to'the public is at issue -- and because of each of these exceptions, the rule's cost-benefit balancing provisions are inapplicable. If a licensee is not complying with its license or com-mitments, or with the Commission's rules and orders, there may no longer be reasonable assurance that the licensee's facility pro-s vides adequate protection of health and safety. The Commission will not apply the rule's cost-juttification standard when decid-ing whether to backfit to bring a licensee into compliance. Section (a)(4)(i), supra. Similarly, if despite compliance a facility poses an undue risk to health and safety, the Commission will not apply 24
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' the rule's cost-juscification standard when deciding whether a backfit may be necessary to remove the undue risk at the 7 facility. Soreover, if new information should reveal that some
- regulation does 'not, in fact, help assure: adequate protection, backfits required by an amendment to that regulation in order to
' assure adequate protection would not be subject to the backfit
. rule's' cost-justification standard.10 Section (a)(4)(ii) ar.d note 3.
4i UCS's entire argument is an attack on the use of costs to help determine whether " adequate protection" for purposes of the Atomic Energy Act has been met. UCS Brief_at 26-49. However, as noted, the backfit rule and the Statement of Consdderations which accompanied it make clear that the rule's provisions on cost-benefit analysis and its cost-justification standards do not apply when meeting adequate protection is at stake. Thus UCS',s argument is fundamentally misconceived.11 10" Undue" risk is the " unreasonable" risk which the Atomic Energy Act instructs the Commission to avoid. See Sections 57(c),- 57(d), 81, and 109 of tne Act, 42 U.S.C. SS 2077c(2), 2077d, 213.1, and 2139. The Act also instructs the Commission to assure ' adequate protection". See S 182a of the Act, 42 U.S.C. S 2232a. Neither the Act nor any authority interpreting it has distinguished between the two standards these two instructions contain. In fact, the Commission treats these standards as interchangeable. 11 As we have repeatedly stressed, the backfit rule does not allow consideration of costs when a reactor must be modified in order.to achieve adequate protection, except for making a choice among alternative ways of ensuring no undue risk. 10 C.F.R. 50.109, note 3. However, the Commission has also stated in the rule's Statement of Considerations that it has "no intent ... to (Footnote Continued) 25
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3: . i ,UCS does acknowledge thet the backfit rule contains the i three exception proviciens just discussed. See UCS Brief ] l at 14-15. However, UCS simply ignores the necessary implications of two of those provisions and argues that the third, which ] excepts backfits which are required to ensure that there is no ,
~ undue rish but which need not be imposed immediately, see l S 50.109(a)(4)(ii), n .'3, is " illusory". UCS Brief at 15-18. The i basic of this argument is UCS's assertion that "the commission is only authorized by law to order actions which are 'necessary' to protect the public health and safety ..." UCS Brief at 15, citing section 103b of the AEA,_42 U.S.C. S 2133b. UCS then con-cludes that, since the third exception "necessarily implies that che rule applies only to backfits which are not 'necessary' to ensure no undue risk", either the rule applies to nothing, or the exception is illusory.
(Footnote Continued) include within the scope of the exception new or modified interpretations of what constitutes no undue risk to the public In short, health and safety." 50 Fed. Reg. at 38103, col. 2. cost is not_a consideration in meeting the "no undue risk" standard. - But in setting ar.y such new standard, the rule's cost-benefit analysis requirement would apply. For example, if the Commission were to consider changing the meaning of "no undue risk" to reduce the overall risk level of regulated activities still further, the Commission would determine whether the costs to licensees of adapting to such a new standard would be justified by the benefits for public health and safety. But once the new standard was established, licensees would not be excused from meeting it for reasons of cost. The Commission's approach is entirely consistent with Congress' intent to foster the growth of a nuclear industry through a regulatory piSgram that would keep risk levels acceptable but not prohibitis 'ly low. See Argument II,B. 26
, Petitioners mistakenly assume that the only actions whi:h are "necessary" are those which are required for " adequate pro *.e .lon". This view of the Commission's authority simply ignores the distinction between the Commission's mandate to require " adequate protection" from all its licensees and its authority to exercise its discretion to further minimite riske to
.the public health and safety. Contare section 18:a, 42 U.S.C.
5 2232a with section 1611, 42 U.S.C. S 2201(i). See Statement of the Case, B, suora. Moreover, this view of the Commission's authority contradicts the,very statutory provision which UCS cites to sup-port it. In pertinent part, section 103b(2) of the Act says,
"[t]he commission ~shall issue such licenses on a nonexclusive ,
basis to persons applying therefor...(2) who are equipped to observe and who agree to observe such safety standards to protect health and to minimi:e dancer to life or property as the Commission may by rule establish..." 42 U.S.C. 5 2133b(2) (emphases added). 11othing in this section says that once the Commission has achieved a level of risk which is not undue, it may proceed no further. To the contrary, like section 1611 of the Act, this section clearly gives the Commission the authority to minimize risk. In the light of this grant of authority to the Commission to require backfits which are "necessary" to achieve incremental improvements beyond a level of adequate protection, 27
n. UCS's assertion that the exemption prov4.sions in the rule are
)
illusory is simply wrong.1', B. The Atomic Energy Act Gives The Commission The Authority To Ueigh Costs And Benefits When Deciding Whether to Require Backfits Of A Plant Which Already Provides Adecuate Protection.
. . . l In nuclear technology risk of accidents can in principle always be reduced a little more, though never entirely eliminated, by adding yet another backup device or increasing the thickness of a barrier. If reduction in risk were the sole test for a backfit, there would be no apparent way to decide when !.
" enough had been done to " minimize danger." Thus it is-difficult j l-to see how~ consideration of costs can be avoided if the regulated j t
industry is not to be overwhelmed by a logically interminable i succession of backfits, tending toward, but never achieving, zero ; risk. , j l 12 Petitioners cite, as being consistent with their mistaken assumption about'the Commission's authority, a remark by Victor Stello, Chairman of the Committee to Review Generic Requirements when he made the remark, now the agency's Executive Director for Operations. Speaking in a public Commission meeting before passage of the backfit rule, Mr. Stello said that the undue risk , exception "[left) the impression that the only time you do UCS Brief, at backfit is when it's not necessary for safety." 16, citine Transcript, Commission Meeting, Discussion /Possible Vote on Final Rule on Backfitting, June 26, 1985, at 74 (J.A. 254). Mr. Stello was rightly concerned to emphasize that the agency seeks to impose no unnecessary requirement. It is, after all, one of~the aims of the backfit rule to prevent such requirements. However, actions "necessary" for safety include not only actions necessary to maintain adequate protection, but also actions necessary to minimite risk. 28
P@ [ I The commission's backfit rule deals reasonably with this problem by a carefully thought-out procedure for controlling $
- backfitting, one that among other things considers :osts in a way that will achieve the purposes of the Atomic Energy Act. Though there was dissent from the final' rule, there was no dissent from the proposition that economic costs may be considered in deciding whether to backfit. As the Commission observed in promulgating the present backfit rule: "Without. cost as a competing concid-eration in these circumstances, the regulatory process takes on the characteristics of a quest for a risk-free plant, an unat- 1 tainable objective as recognized by Congress ..." 50 Ted. Reg.
1 38097, 38103, col. 1 (September 20, 1985) (Final Rule) (J.A. 1, l 7). . Thus a rational approach to the problem of determining when to incorporate advances in technology into existing plants which already provide adequate protection is based on the principle that the only substantial advances which should be incorporated are those which repay in increased safety the costs (both eco-nomic and to health and safety) which their installation and l maintenance entail. The Atomic Energy Act recognizes this difficulty by not mandating a rigid formula for defining the level of protection that must be achieved in protecting the public, but rather by l delegating broad authority to the Commission to set that level in ] its discretion. As this Court has repeatedly observed, that Act established "a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the adminis- l l trative agency, free of close prescription in its charter as to l 29 , 1 s
l ! C'v' . l y[1 ' hov it shall preceed in achieving the s tatutory objectives.'
.~i )
Siegel v. AEC, 400 F.2d 778, 763 (D.C. Cir. 1968). See also, ! e.g., Carstens v. NRC, 742 F.2d 1546, 1551 (D.C. Cir. 1984): ; I Chree teile Island Alet t, Inc. v. NRC, 771 F.2d 7*0, 727 (3d Cir. l 1985). : The statutory provision most directly implicated by l this lausuit vividly demonstrates this repeatedly recognited principle. Under section 1611, 42 U.S.C. S 20011, the Commission may ' prescribe such regulations or orders as it may deem neces- . sary ... in order to protect health and to minimi:e danger to i life or property.'13 While not speaking directly to the issue of ; whether economic costs may be a legitimate consideration in min- ! t imi:ing riska, certainly this provision of the Act says nothing to preclude the utilization of a cost factor in order to avoid l i 13 Under section 182a, 42 U.S.C. S 2232a, the Commission may l impose ruJes to enable it to obtain such information as it
' deem (s) necessary in orce't to enable it to find that [the regulated activity) ... Will provide adequate protection to the health and safety of the public.' As noted tnroughout this brief, the necessity for a licensee to meet the 'edequate protection' requirement is not implicated by the backfitting rule. It is undisputed in this case that the Commission will not allow any licenuee to plead pove:ty as an excuse for not meeting that level of safety which is necessary to provide adequate protection to the public. However, the only relevant authority ,
that UCS cites for the proposition that the Commission cannot consider costs in protecting public health and safety goes cirectly ta this undisputed point. UCS Brief at 25-52. See, e.g., Power Reactor Development Corp. v. International Union of Electrical Radio and itachine Workers, 367 U.S. 396 (1961) (UCS 5Iief at 38-40); Maine Yan::ee Atomic Power Co. (Maine Yankee Atomic Power Station), 6 A.E.C. 1003 (1973) (UCS Brief at 40-42); Seacoast Anti-Pollution Leaoue v. NRC, 690 F.2d 1025, 1033 (D.C. Dir. 1982) (UCS Brief at 44). 30
~
't i .
the never-ending quest for a risk-free nuclear power plant by ] r ' ratcheting additional technical requirements on 14RC licenses. l Uncer the circumstances, the Commission's decision to utili:e costs ac one factor in determining when additional safety protec-tions wil2 be required of its licenseen is a reasonable interpre- l f tation of the Atomic Energy Act tnat should be respected by this
- t. .
Court. Chevron, USA v.11atural Resources Def ense council, 467 f U.S. 837, 81 L.Ed. 2d 694, 702-03 (1984). i che reasonablenesa of this interpretation of section ! 1611 of the Act, 42 U.S.C. S 22011, is underscored by a review of ! other provisions in the AEA. In conducting this review it is j important to keep firmly in mind that Congress, in passing the f Atomic Energy Act, had as a primary purpose and goal the develop-ment of peaceful uses of nuclear power through private I enterprice. See, e.c., 42 U.S.C. SS 2011a, b, 2013d. Pacific f Gas & Electric Co. v. State Energv Resources Conservation and f
' Development Co.T. mission, 461 U.S. 190, 194,'207, 221 (1963).
Chus, Vhile the !!RC is not involved in promoting nuclear power, 42 U.S.C. 5 5801, in interpreting the Atomic Energy Act the liRC, like thic Court, must be cognisant of the Congressional intent manifested in that statute -- including the intent to encourage and develop privste, peaceful uses of the atom. It is simply inconsistent with this intent to conclude that Congress mande.ted the imposition of every new technological safety development, no matter what the cost or the consequences to the industry. Indeed, under the Atomic Energy Act, the balancing of cost and benefit is not limited to situations : overed by the 31
p r i Commission's backfitting rule, situations in which incremental increases beyond the level of adequate protection are being < pursued. A wider role for such balancing is apparent in the , text, even in the very existence, of the Atomic Energy Act itself. Che Atomic Energy Act does not instruct the Commission
.. t to minimi:e the risks of generating electricity by nuclear power until they are zero. Carstens v. NRC, 742 F.2d 1546, 1557 (D.C. > Cir. 1984); North Anna Environmental Coalition v. Mnc, 533 F.2d 655, 665 (D.C. Cir. 1976); nader v. Ray, 363 F.Supp. 946, 954 (D.D.C. 1973). See also Power Reactor Development Co. v. Int'l .
Union of Electrical, Radio and Machine Workers, 367 U.S. 396 i (1961). Thus, that there is such an act at all demonstrates that Congress judged the benefits of nuclear pos.e: to be worth non-zero costs. But further, such balancing of rafety against economic benefit ,is explicit in the text of the Act. That balancing is present, for instance, in the general condition which all power plant licensees must meet: 'The Commission shall issue such licences on a nonexclusive basis to persons applying therefor (1) whose proposed activities will serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utili:ed ... section 103b of the AEA, 42 U.S.C. $ 2133b. In other words, the use of nuclear material carries some risk to safety, but the risk can be borne if the economic benefit from its use is proportionate to the risk. Moreover, in choosing among competing applicants, the Commission is to maximize the economic benefit of the power to be l 32
i' l 4 i ! o produced under the license for which the applicants are ' L competing. I The Commission, in issuing any license for i
- a utili:ation or . production f acility f or the generation i of commercial power under section 103 [just quoted), i F
shall give preferred consideration to applications for such facilities which will be located in high cost , power areas in the United States if there are conflict- : Ing applications for a limited opportunity for cuch ; license. J Section 16:d of the AEA, 42 U.S.C. $ ;232d. <
- n establishing standards under the authority given it l by the AEA, the Commission has in other situctions balanced safety and cost, and the courts have acknowledged the balancing
- and understood the justification for it. For instance, 10 C.F.R.
S 50.13 excludes foreigr. enemy attack frcm the category of inci- 1 dents that nuclear power plants must be designed to withstand. In Siecel v. AEC, 400 F.2d 778 (D.C. Cir. 1968), this Court upheld the regulation, with these words: I l 14 The Commission's poliqy statement on consumer products containing radioactive materials exhibits, with respect to household items, the kind of balancing going on in the Atomic , Energy Act with respect to nuclear power. i Approval of a proposed consumer product will depend upon both the associated exposures of persons to radiation and . the apparent usefulness of the product. It is considered that as a general rule products proposed for distribution will be useful to some degree.... [I1n cases where tangible benefits to the public are questionable and approval of such a product may recult in widespread use of radioactive material, such as in common ! household items, the degree of usefulness and benefit that accrues to the public may be a deciding factor, t 30 Fed. Reg. 3462 (March 16, 1965). , a 33
L
- What.the Commission has essentially decided is that to ~-
l impose such a burden would be to stifie utterly the peaceful utili:ation of atomic energy in the United states. Such a decision hardly seems to us to conflict ! with the Congressienci purposes underlying the Act, nor l' k to exceed the scope of the authority given tne Conmission by Congress to realize those purposes. i l Id. at 783-64 (emphasis added). See also netthern_ States Power j I *
- v. Minnesota, 447 F.2d 1143, 1153-1154 (8th Cir. 1971), affirmed, i
\ i 405 U.S. 1035 (1972). !
' !!oreover, the Commission, in its radiation protection scandards, has adopted an approach very like the solutien just .
L outlined for the problem of incorporating advances in existing power plants: [Plersons engaged in activities under licensen issued : oy the Nuclear Regulatory Commission ... should, in ! addition to complying with the requirements set forth in this part [10 C.F.R. Part 20), make every reasonable effort to maintain radiation exposures, and releases of radioactive materials in effluents to unrestricted i areas, as low as is reasonably achievable. Che term !
*as low as is reasonably achievable" means as low as is l reasonably achievable taking into account the state of technology,'and the economics of improvements in rela-tion to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to the utilization of atomic energy in the public interest.
~
10 C.F.R. S 20.1(c) (1966). Che regu1ation establishes a certain level of protection ar. adequate, but it also requires further increases if they are justified by a balancing of safety and eco-nomic considerations. This balancing was recognized and endorsed in Crowther v. Seaborg, 312 F.Supp. 1205 (D. Colo. 1970). See also, York committee on Safe Environment v. 11RC, 527 F.2d 812 (D.C. Cir. 1975). 34 T
The backfit rule requires censideration of costs only when meeting adequate protection to the public is not at stake.
- t applies to modifications resulting in incremental safety levels higher than the level provided by the *cdequate protec-tion" standard which is required for licensing. Thus the new rule represents a moderate solution to one of the long-tern dif-ficulties of regulating an evolving technology, a solution well within the range permissible under the Atomic Energy Act.15 15 UCS's lega'l authority that the Commission may not consider costs is misdirected for two basic reasons. First, as noted already, all of that authority is devoted to proving a proposition that.is not in dispute -- when modifications are necessar'.' to meet the " adequate protection
- level of safety they will be ordered regardless of costs. See note 13, supra.
Second, some of UCS'S authority does not even involve the Atemic Energy Act. Analyses of different statutes with different language and different regulatory purposes and schemes is of little or no aid in 4.nterpreting the Atomic Energy Act. See, e.e , American Textile Manufacturers v. Donov n, 452 U.S. 490 TTIII) (UCS Brief at 26-06) (interpret;ng Occupational S-fety and Health Act language requiring standarcs which "most adequately assure [] [certain protections), to the extent feasible ....' Id. at 507): Center for Science in the Public Interest v. Department of Treasury, 573 F.Supp. 1166 (D.D.C. 1983), appeal dismissed, 727 F.2d 1161 (D.C. Cir. 1964) (UCS Brief at 28, 35-36) (interpreting the Federal Alcohol Administration Act); Lead Industries Ass'n v. EPA, 647 P.2d 1130 (D.C. Cir.), cert, denied, 101 S.Ct. 621 (1980) (UCS Brief at 28, 36-37) (interpreting the Clean Air Act). 35
1
,p n
[ M Vi'I[ l-
- p. ,,; 7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COM).ISSION '89 OCT 23 P3 :59 ATOMIC SAFETY AND LICENSING APPEAL BOARD yr:
Before Administrative Judgest *.h/, s G. Paul Bollwerk, Chairman Alan S. Rosenthal
.. Howard A. Wilber
)
In the Matter of ) Docket Nos. 50 443-OL
) 50-444-OL PUBLIC SERVICE COMPANY )
OF NEW HAMPSHIRE, ET E. )
)
(Seabrook Station, Unit s 1 and 2) ) Octob.er 20, 1989
) ,
CERTIFICATE OF SERVICE I, John Traficonte, hereby certify that on October 20, 1989, I made service of MOTION OF THE MASSACHUSETTS ATTORNEY GENERAL FOR RECONSIDERATION OF ALAB-922 by Federal Express as indicated by (*) and by first class mail to: Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W. Knapp St. U.S. Nuclear Regulatory Commission Stillwater, OK 74075 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Dr. Richard F. Cole Robert R. Pierci, Esq. Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Cor. mission U.S. Nuclear Regulatory Ccmmission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Hightray Bethesda, MD 20834 Bethesda, MD 20814
- Docketing and Service
- Thomas G. Dignan, Jr.
U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110
*Mitzi A. Young, Esq. Phillip Ahrens, Esq.
Edwin J. Reis, Esq. Assista.t Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General Office of the General Counsel Augusta, ME 04333
.. 11555 Rockville Pike, 15th Floor Rockville, MD 20852 H. Joseph Flynn, Esq.
- Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.
Washington, DC 20472 Robert A. Backus, Esq. Atomic Safety & Licensing Board Backus, Meyer & Solomon U.S. Nuc1 car Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O. Box 516 Manchester, NH 03106 Jane Doughty Dianne Curran, Esq. Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH G3801 2001 S Street, N.W. Washington, DC 20008 Barbara St. Andre, Esq. Judith Mizner, Esq. Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Flcor Boston, MA 02110 Newburyport, MA 01950 Charles P. Grcham, Esq. R. Scott Hill-Whilton, Esq. Murphy & Grahe- Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, 11A 01950 Ashod N. Amirlan, Esq. Sc stor Gordon J. Humphrey 145 South Main Street U. . Lenate P.O. Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn: Tom Burack) Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn: Herb Boynton) Concord, NH 03301
a Paul McEachern, Esq. William S. Lord Shaines & McEachern Board of Selectmen 25 Maplewood Avenue Town Hall - Friend Street Portsmouth, NH 03801P.O. Box 360 Amesbury, MA 01913
*G. Paul Bollwerk, Chairmun
- Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal 3oard U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory ccamission
, ,, Washington, D.C. 10555 Washington, D.C. 10555
*Howard A. Wilber Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 10555 Respectfully submitted, JAMES H. SHANNON ATTORNEY GENERAL Ih
.n Traficonte C ie.', Nuclear Safety Unit epartment of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated: October 20, 1989
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